Kennedy (Migration)

[2020] AATA 3286

Kennedy (Migration) [2020] AATA 3286 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeffrey Kennedy

CASE NUMBER:  2003685

HOME AFFAIRS REFERENCE(S):          BCC2020/202787

MEMBER:Nathan Goetz

DATE:1 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 01 May 2020 at 12:36pm

CATCHWORDS
MIGRATION – cancellation – Subclass 010 (Bridging A) visa – risk to health and safety of Australian community – charged with criminal offences – not placed in detention but granted subsequent bridging visa grant due to application for review – tribunal’s view of illogicality in department’s process – decision under review set aside

LEGISLATION
Migration Act 1958, s 116(1)(e)(ii), 360(2)(a)
Migration Regulations 1994, Schedule 2 cl 187.233, rr 1.13A, 1.13B, 5.19(4)

CASES

Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Papua New Guinea and has frequently travelled in and out of Australia since 11 November 1999. He last arrived in Australia on 10 October 2019 as the holder of a visitor visa and has remained in Australia since that time.

3. On 3 January 2020 while he was onshore, the applicant lodged a visitor visa application as the visitor visa on which he travelled to Australia was to expire on 10 January 2020. On 3 January 2020 the applicant was granted the bridging visa the subject of this decision to allow him to remain in Australia while his visitor visa application was being assessed. The visitor visa applicant remains at the Department and no decision has yet been made in respect of the application.

4. On 16 January 2020 the delegate wrote to the applicant and notified him of an intention to consider cancelling the bridging visa. The notice identified the grounds for cancellation and invited the applicant to respond. The applicant provided written responses to this notice.

5. On 17 February 2020 the delegate decided to cancel the bridging visa. The decision indicates that the delegate had considered the applicant’s responses to the notice, but the ground for cancellation was not outweighed the reasons not to cancel the bridging visa. The delegate cancelled the visa under s.116(1)(e)(ii) of the Act on the basis that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of individuals.

6. The decision record indicates that the applicant had been charged by Queensland Police with the following offences:

   ·     Between 26 June 2019 and 7 July 2019, he had committed the charge of indecent treatment children under the age of 16

   ·     Between 26 June 2019 and 7 June 2019, he had committed the charge of rape

   ·     On 7 June 2019, he had committed the charge of administer drug etc. for the purpose of a sexual act which was committed in the context of domestic violence

   ·     On 4 July 2019, he had committed two charges of unlawful stalking in the context of domestic violence

7. On 25 February 2020 the applicant applied to the Tribunal for a review of the refusal decision. He attached the delegate decision record.

8. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

9. The Tribunal is required to invite an applicant to a hearing so the applicant to present evidence and arguments unless certain circumstances exist. Relevant to this case is the exception that allows the Tribunal to determine the matter without a hearing if the Tribunal is satisfied that it can make a decision favourable to the applicant on the basis of the material before the Tribunal: s.360(2)(a) of the Act.

10. Having looked at the material, the Tribunal is satisfied that it can determine the matter in the applicant’s favour and that a Tribunal hearing was unnecessary.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(10(e)(ii). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(e)(ii) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

13. In the circumstances of this case, the applicant has been charged with offences against a child, sexual offences, stalking and drug offences. The delegate decision noted that the sexual offences (indecent treatment, rape, and administration of a drug) involve a child who was the daughter of a woman the applicant was previously in a personal relationship. The stalking charges relate both to the child and her mother. Such offending is very serious and strikes at the heart of a civilised society.

14. The applicant submitted that the ground for cancellation did not exist because he did not know the present whereabouts of the two complainants, and is unable to contact them or be near them. The applicant further submitted that he had been released on bail in connection with the charges and that this meant that he posed no risk to the complainants.

15. The Tribunal accepts that while the applicant has been charged with the above offences, a court has not yet determined whether the applicant is guilty or not guilty of the offending. The Tribunal further accepts that the applicant has been released on bail and that the applicant may not know the location of the complainants or have any means to contact them.

16. However, this does not mean that the applicant would not be, or may not be, or would not be, or might not be, a risk to the health and safety of those complainants.

17. In relation to the applicant’s bail conditions, his release on bail indicates that an appropriate authority has not been satisfied that the applicant is an unacceptable risk of doing certain things[1], such as committing offences while on bail, endangering the safety or welfare of complainants or interfering with witnesses. The test being considered by the Tribunal is quite different, and is not concerned with risk being acceptable or unacceptable. It is sufficient that the applicant is, would, may or might, be a risk. To that end, the Tribunal has considered the charges faced by the applicant. They are indeed very serious and the Tribunal cannot be satisfied that, if the allegations against the applicant are true, he would not be a risk to the two complainants. Being charged with offences is not the same as being found guilty, and the Tribunal acknowledges the presumption of innocence. The applicant has no criminal history and it will ultimately be up to a Court to determine if the applicant is guilty of any, some or all of the charges against him. However, the charges against the applicant remain ongoing. To that end, the Tribunal has considered the Queensland Director of Public Prosecutions Guidelines about the decision to prosecute[2]. At Guideline 4, the decision to prosecute is on the basis that there is sufficient evidence and it is in the public interest to do so. As such, the Tribunal is satisfied that there is sufficient evidence to make out the charges against the applicant, and accordingly, he is, may, would or might be a risk to the complainants.

    [1] Section 16, Bail Act 1980 (Qld)

    [2] Director’s Guidelines (Qld) 30 June 2016 >

    For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

19. The Tribunal has considered that the all matters raised by the applicant as to why his bridging visa should not be cancelled, including his claim that he would be placed into immigration detention while he awaited his trial meaning that he would not be able to engage in employment and the impact the cancellation would have on the applicant’s family, particularly his father who is ill. The Tribunal has also considered the applicant’s purpose in travelling to Australia on the visitor visa, and that the visa applicant lodged his visitor visa application form on the basis that he needed to extend his stay in Australia because of the criminal charges against him. The Tribunal accepts that there is no evidence of past non-compliance with visa conditions by the applicant, and that some hardship will result to the applicant’s family abroad if he is unable to live and work as he has previously done.

20. However, in the Tribunal’s view the most persuasive factor in deciding whether or not to cancel the applicant’s bridging visa is the subsequent actions of the Department concerning the applicant’s migration status in Australia.

21. The delegate cancelled the applicant’s bridging visa on 17 February 2020. The applicant sought a review of this decision to the Tribunal on 25 February 2020. In the ordinary course of things, a person who has had their bridging visa cancelled becomes an unlawful non-citizen in Australia. However, the applicant is not such a person. From the Department records, it appears that the Department subsequently granted the applicant another bridging visa on 5 March 2020 and regularised his migration status. This subsequent bridging visa was granted because the applicant had applied to the Tribunal for a review of the cancellation decision. The applicant was granted a bridging E visa.

22. To the Tribunal’s way of thinking, it is a nonsense for the Department to cancel the applicant’s bridging visa on the basis that he is, may, would or might be, a risk to the complainants in light of his criminal offending, and instead of detaining the applicant in immigration detention as an unlawful non-citizen because of the risk he poses if he were to remain in the community, decide to grant the applicant another bridging visa to allow the applicant to remain in the community. The bridging E visa that was granted to the applicant has conditions attached to it, with the most relevant condition being 8564. This condition requires that the applicant not engage in criminal conduct. A person cannot be granted a bridging visa if a decision-maker is not satisfied that the visa holder will abide by conditions attached to it. The question of whether a person will abide by conditions is not a question of risk. It requires satisfaction that conditions will be adhered to. In the applicant’s circumstances, the Department has on one hand found that the applicant is, may, would or might be a risk to the complainants, but is also satisfied that the applicant will not engage in criminal conduct. The Department would not have granted the applicant the subsequent bridging visa if there were any concerns about the applicant engaging in future criminal conduct. The Tribunal really struggles with the logic of cancelling the earlier bridging visa and giving the applicant a subsequent bridging visa.

23. The community would be rightly concerned about a non-citizen facing the charges as the applicant does being allowed to remain in the community. The Tribunal would not have granted the visa applicant the subsequent bridging visa. However, it is the Department who as adopted this course in allowing the applicant to remain in the community as a lawful-non citizen on the subsequent bridging visa. It would be incredulous for the Tribunal to now uphold the bridging visa cancellation in light of the subsequent actions of the Department granting the applicant a bridging visa. The Tribunal must be reasonable when exercising its discretion whether to uphold the visa cancellation. In the circumstances of this case, to do anything other than set aside the cancellation would be unreasonable in all the circumstances.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.