Mekingrailas (Migration)

[2018] AATA 1069

Mekingrailas (Migration) [2018] AATA 1069 (21 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pongsakorn Mekingrailas

CASE NUMBER:  1803305

DIBP REFERENCE(S):  96322172144 CLF2018/9985

MEMBER:Bridget Cullen

DATE:21 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 21 March 2018 at 3:50pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Work related charges – Seriousness of criminal charges – Multiple complainants

LEGISLATION
Migration Act 1958, s 116

CASES
Gong v MIBP [2016] FCCA 581

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 February 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant had been charged with several offences of sexual assault and rape, and the delegate formed a view that the applicant had shown a disregard for the safety and well-being of the Australian community and Australian laws. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 9 March 2018 via video-link from the Villawood Immigration Detention Centre to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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(1)(e). 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?

   s.116(1)(e) - risk to Australian community or individual

7. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

   Background

8. The applicant provided the Tribunal with a copy of the delegate's decision along with his application for review.

9. The applicant is a citizen of Thailand born on 14 June 1984 (33 years old). He first arrived in Australia on 23 January 2010, on a Student (Temporary)(Class TU) Subclass 570 Independent ELICOS Sector visa.  He was then on a Bridging Visa until he was granted a Student (Temporary)(Class TU) Subclass 572 Vocational  Sector visa on 13 August 2010.  Thereafter, he was granted a series of further Student (Temporary)(Class TU) Subclass 572 visas, until 7 January 2015, when he was granted a Temporary Business Entry (Class 457) visa, as the spouse of his wife, the primary holder of the visa.

10. On 2 February 2018 the Department of immigration issued the applicant with a Notice of Intention to Consider Cancellation of his subclass 457 visa.

11. The delegate of the department put to the applicant that there appeared to be grounds for cancellation under s.116(1)(e)(i) of the Migration Act being the risk to the health, safety or good order of the Australian community or a segment of the Australian community.

12. The delegate found that the applicant's behavior whilst working as a masseuse resulted in several charges being laid against him for the offences of rape and sexual assault.  The delegate considered that the charges were serious, particularly because they arose out of his work in the trusted role of massage therapist, and that the alleged behavior may have caused significant trauma to the victims, and may have long-lasting negative effects on the victims’ emotional wellbeing, and confidence within the health professional massage industry.  The delegate considered that the alleged behavior indicates that the applicant has no regard for Australia’s laws and values and that his continued presence in Australia may pose a risk to the safety of the Australian community.

13. The delegate sought a response from the applicant to the information put to him.  The applicant made the following statements:

    ·That he does not believe the charges should have been made against him.

    ·That the customers paid the money and did not swing, hit or yell at him.

    ·That he believes that this indicated to him that he did nothing wrong or that the police did not even ask him about it.

    ·That he does not need his visa.

    ·That he wants to go back to Thailand and that he plans on coming back to Australia if he can.

14. Having considered the applicant’s response, the delegate proceeded to cancel his visa on the same day, 2 February 2018.

15. The applicant lodged a review application in the Tribunal on 7 February 2018.

16. The Tribunal issued a summons to the Queensland Police Service in relation to the applicant, and was provided with the following documents:

    ·Bench charge sheets for charges preferred against the applicant; and

    ·QP9 Court briefs for charges preferred against the applicant.

17. The Tribunal provided a copy of the summons material to the applicant’s representative, on 7 March 2018, in advance of the hearing.

18. At the hearing, the Tribunal complied with its obligations under s359AA of the Act, and explained that the summons material was relevant to the Tribunal’s consideration of whether the applicant is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.  The Tribunal explained the contents of the summons material to the applicant, as he claimed that his representative had not discussed it with him.

19. The Tribunal invited the applicant to comment on or respond to the information, but warned him of the risk of self-incrimination in relation to his forthcoming criminal proceedings.  The Tribunal advised the applicant that he could seek additional time to comment on the information, or request an adjournment.  The applicant advised that he did not require an adjournment, and further confirmed that he understood the nature of the information as explained to him by the Tribunal.

20. The summons material discloses the same charges that were put to the applicant by the Department at the time of his interview in advance of the Department cancelling his visa.  They are as follows:

Section of Criminal Code 1899 (Qld)	Offence	Date of Offence
349(1)	Rape	20 January 2018
352(1)(A)	Sexual Assaults	20 January 2018
352(1)(A)	Sexual Assaults	20 January 2018
352(1)(A)	Sexual Assaults	5 November 2016
352(1)(A)	Sexual Assaults	29 December 2017
349(1)	Rape	Between 1 June 2017 and 30 June 2017
352(1)(A)	Sexual Assaults	11 January 2018
352(1)(A)	Sexual Assaults	3 November 2017
352(1)(A)	Sexual Assaults	Between 1 November 2016 and 30 November 2017
352(1)(A)	Sexual Assaults	21 January 2018
352(1)(A)	Sexual Assaults	Between 1 July 2016 and 30 September 2016
352(1)(A)	Sexual Assaults	Between 1 January 2017 and 1 July 2017
352(1)(A)	Sexual Assaults	28 February 2017

1. The Tribunal discussed with the applicant the serious nature of the allegations against him.  The Tribunal pointed out that the allegations related to conduct over a two-year period, and by multiple complainants.  The Tribunal pointed out that he was accused of rape by digitally penetrating massage clients, without their consent, whilst they were on the massage table.  The Tribunal pointed out the sexual assault allegations involve the applicant removing the underwear of clients without consent, and then touching their genitals. 

2. The applicant asserts that the presumption of innocence should apply such that a visa cancellation not be considered unless and until a court finds him guilty of the charges. He says that he is “not guilty,” and “hasn’t done anything wrong”. A similar argument was considered by Smith J in the case of Gong v MIBP [2016] FCCA 581. However, Smith J found in that matter at [41] and [45]:

   'The fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder's presence 'may be a risk' to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise.

   In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of charges…

   'The difficulty with the applicant's argument is that, even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of eth prosecution's onus of proof….There is no requirement in it that there be a determination, one way or another, of the guilt of a visa holder.'

3. The Tribunal considers s.116(1)(e) sets a low threshold with the requirement that there need only be a possibility that the person may or might be a risk to health, safety or good order to the Australian community or a segment of the community or an individual.

4. The Tribunal acknowledges the applicant denies the offences, and that he was granted bail prior to being taken into immigration detention following cancellation of his visa, however it is not the role of the Tribunal to make findings on the criminal charges. There is evidence before the Tribunal that serious charges have been alleged against the applicant. The Tribunal finds the laying of charges is sufficient to be satisfied there may or might be a risk to the safety of an individual, the complainants in the criminal matters, or other women in the community.

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

   Consideration of discretion

6. The Tribunal went on discuss with the applicant the matters it would need to consider if it decided to exercise its discretion in the event that it found that grounds existed to cancel his visa.

7. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant's visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department's Procedures Advice Manual PAM3 'General visa cancellation powers'.

8. The Tribunal accepted above the existence of the charges was sufficient ground for cancellation. In exercising the discretion the Tribunal also considers it appropriate to give weight to the seriousness of the charges.

9. The Tribunal has taken into account the applicant’s denial of all the charges.  The Tribunal has further considered the letter from Fisher Dore Lawyers to the applicant (provided to the Tribunal by the applicant), confirming that he had been granted bail on his own undertaking. The letter from Fisher Dore confirms that they appeared on the applicant’s behalf in the Brisbane Magistrates Court No 20 on 12 February 2018. Evidently, the Magistrate, in granting bail, was satisfied the applicant was not at risk of absconding or an unacceptable risk to the complainant or the general public. The applicant was not in detention from the time he was charged in January of 2018 until he was placed in immigration detention in late February of 2018.

10. There is no evidence or inference that during this period he acted in a way such as to cause harm or risk of harm to the complainant or the general community. There is no evidence or inference the applicant has committed any other criminal offences in Australia, or that in his 8 years of working and studying in Australia any other complaints were made against him. The Tribunal gives these factors some weight.

11. The Tribunal has considered the applicant’s statements that working as a masseur gives him a purpose in life, and that he wants to remain in Australia to “make my family proud, that I can look after myself and make a living.” Prior to cancellation, the Applicant was in Australia as a family member of his wife, who is the primary Temporary Business Entry (Class 457) visa holder.  The applicant has advised the Tribunal that he and his wife separated in February of 2018. 

12. The applicant has told the Tribunal that he has no relatives, other than his estranged wife, in Australia, and that all of his family is in Thailand.  The applicant has told the Tribunal that he does not own any property in Australia. 

13. The applicant has told the Tribunal that he is concerned that he cannot receive adequate medical treatment for his asthma in Thailand.  The Tribunal put to the applicant that he was able to manage his asthma for most of his adult life before travelling to Australia, and that the treatment for asthma was available in Thailand.  The applicant responded that his asthma was better in Australia.  The Tribunal gives little weight to this consideration.

14. Having considered the applicant's circumstances as a whole, and taking the totality of the evidence into account, the Tribunal concludes that the visa should be cancelled.

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

    Bridget Cullen
    Member