KAUTOGA (MIGRATION) - [2017] AATA 950

KAUTOGA (MIGRATION) [2017] AATA 950 (6 FEBRUARY 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607917
MEMBERS:Jan Redfern (Presiding)

Kira Raif
DATE OF DECISION:  6 February 2017
DATE CORRIGENDUM
SIGNED:23 June 2017
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
The words ‘While the matters referred to in 52(1) and (2) weigh against cancellation, the matters referred to in 52(3) to (9) either weigh in favour of cancellation or are neutral. Of particular relevance to this case are the matters set out in 52(3), (5), (6) and (7)’ at paragraph 56 should read ‘While the matters referred to in 55(1) and (2) weigh against cancellation, the matters referred to in 55(3) to (9) either weigh in favour of cancellation or are neutral. Of particular relevance to this case are the matters set out in 55(3), (5), (6) and (7).’

Jan Redfern
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1607917
MEMBERS:Jan Redfern (Presiding)

Kira Raif
DATE:6 February 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 6 February 2017 at 3.00pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Work (Long Stay Activity) visa – Subclass 401 – Sports Stream – Applicant charged with serious criminal offences – Visa cancelled on the grounds of breach of condition – Whether ground established – Exercise of discretion in circumstances where visa would have expired – Time of assessment

PROCEDURE – Pre-hearing directions – Non-appearance of applicant – Multiple adjourned hearings
LEGISLATION
Administrative Appeal Tribunal Act 1975 (Cth), s 43(1)
Migration Act 1958, ss 48, 116(1)(b), 140(1), 189, 198, 348, 349(2), 359A, 362B(1A)(a), 496, 499
Migration Amendment (Character and General Visa Cancellation) Act 2014 (No. 129 of 2014) Schedule 2, Item 22
Migration Regulations 1994, r 2.12, r.2.43(1)(la), r 2.72A(7)(a), r 2.72A(8)), Condition 8107, Condition 8303
Tribunals Amalgamation Act 2015 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kim v Minister for Immigration and Citizenship [2008] FCAFC 73
Krummery v Minister for Immigration and Citizenship (2005) 147 FCR 557
Rani & Ors v MIMA (1997) 80 FCR 379
Shi v Migration Agents Registration Authority [2008] HCA 31
Tien & Ors v MIMA (1998) 89 FCR 80
Zhang v MIAC [2007] FMCA 1855
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2July 2014 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s subclass 401 (Temporary Work (Long Stay Activity)) visa under s.116 of the Migration Act 1958 (the Migration Act).
The delegate cancelled the visa under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KAUTOGA (MIGRATION)

Details

AGLC: KAUTOGA (MIGRATION) [2017] AATA 950
Case: [2017] AATA 950
Decision Date: 6 FEBRUARY 2017

CaseChat Overview and Summary

This case concerned the review of a decision to cancel the Subclass 401 (Temporary Work (Long Stay Activity)) visa held by the first applicant, a Fijian citizen. The applicant had been granted the visa in January 2014, sponsored by a sporting club, and it was due to expire in December 2015. The visa was cancelled by a delegate of the Minister on 2 July 2014, on the grounds that the applicant had breached condition 8303, which prohibited involvement in activities disruptive to or threatening harm to the Australian community. This cancellation was based on the applicant's arrest and subsequent charges for serious sexual offences and assault. The applicant's wife was included as a family member on the visa, but the Tribunal found it had no jurisdiction concerning her.

The primary legal issues before the Tribunal were whether the applicant had breached visa condition 8303, and if so, whether the discretion to cancel the visa should be exercised in the circumstances. The Tribunal was required to consider the applicant's conduct in light of the serious criminal charges he faced, and the fact that the visa would have expired before any potential resolution of those charges. The Tribunal also had to determine whether to proceed with the review in the absence of the applicant, who had failed to attend multiple hearings despite being given notice.

The Tribunal reasoned that the applicant had been afforded multiple opportunities to present his case, including adjournments, and had been informed that the review might proceed on the papers if he did not appear. Evidence indicated he had received hearing invitations by post and email, and his previous legal representatives had indicated no further documentary material would be provided. The Tribunal found that the applicant’s arrest and charges for serious criminal offences, which led to bail being refused initially, provided sufficient grounds to be satisfied that he had breached condition 8303. The Tribunal affirmed the decision to cancel the visa, concluding that, considering all circumstances, cancellation was warranted.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal has decided to affirm the decision under review and our reasons follow.BACKGROUND [The first named applicant] is a 26 year old Fijian citizen. He entered Australia in May 2013 under a subclass 401 visa in the sports stream on the basis of sponsorship by [Club 1]. On 24 December 2013, he applied for a further subclass 401 visa in the basis of sponsorship by [Club 2]. The position nomination was approved on 8 January 2014 and on 16 January 2014 [the applicant] was granted a further subclass 401 visa. The visa was subject to certain conditions, relevantly conditions 8303 (activity limitation) and 8107 (work limitation). The visa would have expired on 31 December 2015 had it not been cancelled. [The applicant’s wife] was included in the visa grant as a family member. On 2 July 2014 [the applicant] was arrested by [the] Police and charged with two counts of sexual intercourse without consent, assault with an act of indecency and assault occasioning actual bodily harm. The charges related to three different incidents involving three women. Bail was initially refused but subsequently granted. [The applicant] pleaded not guilty to the charges [in] October 2014. He was committed to stand trial and his trial was initially listed for hearing [in] June 2015. The trial was deferred on a number of occasions, the reasons for which are not entirely clear, and [the applicant’s] criminal trial for these offences is to commence [later in] February 2017. He was in immigration detention from July 2014 which, it was submitted by his previous lawyers, inhibited the defence of his criminal trial. [The applicant] was released from immigration detention in December 2015 and has been living in the community with [his wife] since this time. According to submissions made by [the applicant’s] legal representatives, [the applicants] are living in the home of [the applicant’s wife’s] sister, who died in October 2015, leaving four children aged 16, 19, 20 and 22 years. There is also a nephew who is said to have been in the care of [the applicant’s wife’s] sister from an ‘informal adoption’ aged 6.[1] The eldest daughter, who is 22 years old, has three children including [those] born in [year].[2] [1] Letter [in] October 2015 (with annexures) from [Company 1].[2] Letter dated [in] September 2016 from [Company 1]. [The applicant’s] visa was cancelled by a delegate of the Minister on 2 July 2014 on the grounds that he had breached a condition of his visa, being condition 8303, which provided that [the applicant] “must not become involved in activities disruptive to or violence threatening harm to the Australian community or group within the Australian community”. The delegate was satisfied that [the applicant] had breached this condition because he had been arrested and charged with the four criminal offences. The delegate also noted that bail had been refused based on the seriousness of the crimes. A Police Fact Sheet, apparently provided by [the] Police in support of the charges, was attached to the notice of intention to consider cancellation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Jan RedfernDeputy PresidentKira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal decided to proceed to determine the matters under s 362B(1A)(a) of the Migration Act for the following reasons:(1)[the applicant] has been given three opportunities to attend a hearing and present his case, including two adjournments. He was on notice that if he did not appear the review may be determined on the papers; (2)There was evidence [the applicant] had been sent the invitation to hearing by post and email;(3)He has been previously represented by a lawyer who provided detailed submissions and evidence in respect of the previous reviews of the cancellation of [the applicant’s] visa and for refusal of the bridging visa and that material was available for consideration by the Tribunal in this review; and(4)[the applicant’s] previous lawyer, [Mr A], had indicated that no further documentary material would be provided, other than the submissions on the legal and discretionary issues referred to in [22].CONSIDERATIONOutline of the evidence The factual matters relevant to this review, which are not in dispute and have been outlined in or evidenced by submissions, documents and statements provided by [the applicant] and his representatives to the Tribunal in relation to the cancellation of the visa are as follows.[5][5] Department of Immigration and Border Protection, Notice of intention to consider cancellation ([dated in] July 2014); Letters to the Tribunal from [company] dated [in] August 2014 (with attachments); [in] November 2014 (with attachments) and [in] December 2014 (with attachments); [the applicant’s wife] ([in] March 2015) (with attachments); Letters to the Tribunal from [Company 1] dated [in] August 2015, [several dates in] October] 2015, [and two dates in] September 2016.(1)[The applicant] initially entered Australia in December 2012 on a visitor visa, departing on 21 March 2013. He entered Australia on a subclass 401 temporary work ‘Sport’ visa to play [his sport] with [Club 1] in May 2013. This visa expired in December 2013. [The applicant] was accompanied by [his wife], who was included in the visa as a member of his family unit.(2)[The applicant] was granted a further subclass 401 Sport visa on 16 January 2014. He was sponsored by [Club 2]. The term of [the applicant’s] contract with [Club 2] was said to be January 2014 to December 2015. [The applicant’s] visa was valid until [December] 2015. [The applicant’s wife] was again included as a member of [the applicant’s] family unit.(3)Relevantly, conditions 8303 and 8107 were imposed on [the applicant’s] visa. Condition 8303 provides as follows:The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.(4)Condition 8107, which, in summary contains restrictions on the work activities that can be undertaken by a visa holder, is set out in full in the attachment to this decision. Condition 8107(4) relevantly provides: (4)If the visa is:(a)a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or(b)a Subclass 402 (Training and Research) visa; or(ba)a Subclass 420 (Temporary Work (Entertainment)) visa;the holder must not:(c)cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or(d)engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or(e)engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.(5)[The applicant] played [his sport] with [Club 2] but sustained an injury in about March 2014. In a statement lodged with the Migration Review Tribunal in support of the first review, [the applicant] stated that he continued to attend training and matches although he could not play. According to medical evidence provided by [the applicant] he sustained a knee injury playing [his sport].(6)[The applicant] worked as a courier with an employer other than his sponsor. He states this was agreed with [Club 2] because he was not paid to play [his sport]. [The applicant] also asserts that the Department was aware of this at the time a delegate of the Minister approved the subclass 401 visa and that he therefore believed he was entitled to work for an employer other than [Club 2].(7)[In] July 2014 [the applicant] was arrested by [the] Police and taken to [a] Police Station. He was charged with four sexual offence charges alleged to have taken place on [in] January 2013 and [March] 2013 in [specified] areas. The charges were two counts of sexual assault, assault with an act of indecency and assault occasioning actual bodily harm.(8)On the same day of the arrest [the applicant] was interviewed by immigration officers at an interview conducted at the [Police] Station. Following this interview, extracts of which are stated to be recorded in a document headed ‘Notice of Intention to Consider Cancellation under S 116 of The Migration Act 1958’, [the applicant’s] Sports visa was cancelled. It was recorded that the ground for the cancellation was that the delegate was satisfied [the applicant] had breached condition 8303 of his visa (refer s 116(1)(b) of the Migration Act). (9)[The applicant] was initially refused bail by the [police] bail officer but was granted bail on condition on 4 July 2014. [The applicant] was not released into the community at that time because he was detained in immigration detention in Villawood Detention Centre from 4 July 2014. He remained in Villawood until he was transferred to Maribyrnong Immigration Detention Centre in about May 2015.(10)[The applicant] pleaded not guilty to all charges and his criminal trial was listed for hearing [in] June 2015. The trial was vacated [in] May 2015 following [the applicant’s] move to Maribyrnong because of difficulties in [the applicant] instructing his criminal lawyers. The trial was listed for hearing [in] November 2015 but was again deferred.(11)While in immigration detention in Maribyrnong [the applicant] was charged with one count of destroying Commonwealth property on 1 June 2015. He pleaded guilty and, while no conviction was recorded, a good behaviour bond of 18 months and fine of $500 were imposed by the court [in] July 2015. (12)[In] July 2014 [the applicant] applied for a bridging visa. His application was refused and he applied for a review of this decision to the Migration Review Tribunal. The decision of the delegate was affirmed. [The applicant] made a second application for a bridging visa through his lawyers [Company 1] [in] August 2015. This application was again refused and [the applicant] applied for review of the decision to this Tribunal. The decision was affirmed but on judicial review the decision was quashed. The matter was remitted to this Tribunal for reconsideration. The Tribunal, differently constituted, remitted the matter for reconsideration with directions, including a direction that [the applicant] met the bridging visa criteria. [The applicant] was granted a bridging visa and was released from immigration detention following this decision. (13)One of the matters raised in support of the bridging visa application was that [sister of applicant’s wife’s] had recently passed away but before her death she had requested that [the applicants] look after the children.