Mirza (Migration)

[2021] AATA 3907

Mirza (Migration) [2021] AATA 3907 (30 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sharjeel Haider Mirza

CASE NUMBER:  1923170

HOME AFFAIRS REFERENCE(S):          BCC2019/3674818

MEMBER:Jade Murphy

DATE:30 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 30 September 2021 at 4:12pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to the safety of the Australian community – applicant convicted of criminal offences – applicant’s visa would have expired – non-refoulement obligations – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 36, 48, 116, 140, 189, 198
Migration Regulations 1994
Sentencing Act 1991 (Vic), s 6F
Sex Offenders Registration Act 2004 (Vic), s 11

CASES

COT15 v MIBP (No 1) (2015) 236 FCR 148
Gong v MIBP [2016] FCCA 561
Goundar v MIBP [2016] FCA 1203
Ibrahim v MHA [2019] FCAFC 89
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 August 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) 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 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. 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 5 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Kanza Sharjeel, the applicant’s spouse.

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.

   Hearing 5 March 2020

7. At the outset of the hearing, the Tribunal informed the applicant that the review hearing is distinctly separate from any criminal proceedings that are underway. The Tribunal made it clear that the review hearing is about the cancellation of his subclass 485 visa only and was not a hearing of his criminal charges. The Tribunal cautioned the applicant that anything said during the review hearing may be used against him in his criminal proceedings. The Tribunal made it clear that the applicant was under no obligation to tell the Tribunal anything about the criminal charges pending. The Tribunal asked the applicant whether he understood this caution, to which he responded he did.

8. The applicant called his wife, Mrs Kanza Sharjeel to give evidence. The Tribunal told the applicant it did not have any questions for the witness but gave her the opportunity to tell the Tribunal anything she wanted to in relation to the review.

   Does the ground for cancellation exist?

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

9. A visa may be cancelled under s.116(1)(e) 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, 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. 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].

10. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities, or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

11. As set out in the primary decision record, a copy of which was provided by the applicant to the Tribunal on review, the applicant’s visa was cancelled by the Department after Victoria Police advised it on 21 July 2019 that the applicant had been charged with three criminal offences, namely attempted rape, sexual assault and unlawful assault (the applicant was later sentenced on two counts of sexual assault and one count of rape).

12. Further, the primary decision record set out the alleged facts leading to the charges being laid. It reports that the applicant was allegedly fraudulently operating as an Uber driver when the applicant offered two heavily intoxicated women a ride home under the pretence of being an Uber driver and during the ride the applicant sexually assaulted the women as described in the charges.

13. At the review hearing, the Tribunal heard that the applicant was being held on remand at Hopkins Correctional Centre, awaiting a committal hearing for criminal charges on 1 April 2020. As a result, the applicant made submissions that the ground for cancellation has not been made out as the allegations have not yet been decided by the criminal court and as the applicant denies the allegations, he is to be presumed innocent. The applicant submitted that a cancellation of this visa without his criminal charges having been heard and determined would be a contravention of his right to the presumption of innocence.

14. At hearing, the Tribunal acknowledged the applicant’s submissions in this regard, however noted that it is not necessary for the criminal charges to have been heard and determined by a criminal court, or for a ‘guilty’ verdict to have been returned. The Tribunal did not consider the determination of a visa cancellation matter to infringe on the applicant’s rights to Natural Justice, in particular his right to the presumption of innocence in a criminal matter. As explained to the applicant at hearing, the hearing and determination of this visa cancellation is distinctly separate to his criminal matter and will be considered by the Tribunal on different grounds.

15. However, in the passage of time between the applicant’s review hearing and the time of this decision, the applicant’s criminal charges were heard and determined.

16. The Tribunal, at the time of writing this decision, notes that according to the County Court extract (as provided to the Tribunal by the applicant on 21 September 2021 by email), on 20 August 2021 the applicant was convicted of three criminal offences, namely two counts of sexual assault and one count of rape by her Honour Judge Chambers. The applicant was sentenced to a total effective custodial sentence of six years imprisonment. Further, pursuant to s.6F of the Sentencing Act 1991 (Vic), the applicant was sentenced as a serious sexual offender and has been registered as such under s.11 of the Sex Offenders Registration Act 2004 and will be required to comply with the reporting obligations for life.

17. The wording of the ground for cancellation in s.116(1)(e)(i) is clear that the ground for visa cancellation can be made out if the applicant merely ‘may be’ or ‘might be’ a risk to the health, safety and good order of the Australian community. The Tribunal considers that the wording of the regulation puts the threshold significantly lower than the criminal standard. The Tribunal considers that the mere fact that charges of this seriousness have been laid against the applicant is in itself enough for the Tribunal to be satisfied that there ‘may be’ a risk to the safety or good order of the Australian community.

18. Although not binding on it, the Tribunal has had regard to Departmental policy that indicates that if relying on the existence of a pending charge to support cancellation under s.116(1)(e), decision makers must have regard to the nature of the offence and draw a rational link to how the allegation poses a risk to health, safety or good order. In this regard the Tribunal has considered the serious nature of the offence and that there is a clear link between the nature of the allegations and the risk of the Australian community, in particular the safety of women.

19. Further, the applicant submitted that the applicant is of good character and has otherwise not breached any visa conditions since arriving in Australia and stated that the applicant’s familial responsibilities denigrate the risk to the community.     

20. The Tribunal acknowledges the applicant’s submissions but when balanced against the objective seriousness of the charges laid and the fact that these charges were found to have been proven to a criminal standard in the County Court, the Tribunal is satisfied that the applicant’s presence in Australia may be a risk to the safety or good order of the Australian community.  

21. 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 visa should be cancelled.

    Consideration of discretion

22. 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.’

    Purpose of the visa holder’s travel and stay in Australia

23. As outlined in the primary decision record, and confirmed in the applicant’s written submissions, the applicant arrived in Australia on 21 December 2015 on a Student (subclass 573) visa, and his family arrived as dependants on his visa on 13 December 2016.

24. On 15 August 2017, the applicant was granted a Student (subclass 500) visa and on 14 March 2018 the applicant was granted this Temporary Graduate (subclass 485) visa. The Tribunal notes that the applicant’s subclass 485 visa is due to expire on 14 March 2020. 

25. The Tribunal notes the purpose of the applicant’s travel and stay in Australia was to study but notes that the applicant’s subclass 485 visa was granted from 14 March 2018 to 14 March 2020 and in that regard the period of study for which he came to Australia, has been fulfilled.

26. Based on written submissions and oral submissions at hearing, the purpose of the applicant’s travel to Australia was to continue his study, and that the purpose of his stay in Australia is to secure permanent visas through the post-study work stream and establish a life for himself and his family in Australia.

27. The applicant’s written submissions note that the purpose of wanting to secure permanent visas includes the need for the applicant and his family to leave Pakistan due to adverse treatment by the applicant’s family. The applicant stated that he and his family would be unsafe if they returned to Pakistan and that the secondary applicants fear for their safety, specifically from the applicant’s family. Further, the applicant claimed that there is a real possibility of family and wider community punishment. The applicant made these submissions in the context that the applicant’s brother in law is a Pakistani politician and is currently serving as the Federal Minister for Science and Technology and fear for the consequences of any embarrassment that might be felt.

28. Considering the applicant’s claims regarding the fear they have for their safety if they were to return to Pakistan, the Tribunal notes that the applicants are not prevented from lodging an application for a protection visa and that it is open to them to do so.

29. For these reasons, the Tribunal places little weight on the applicant’s submissions as set out above.

    The extent of compliance with visa conditions

30. Aside from the alleged offending, the subject of current charges, there is no information before the Tribunal to indicate that there has been any non-compliance with any other visa conditions.

31. The Tribunal attributes some weight in favour of the applicant in this regard.

    The degree of hardship that may be caused to the visa holder and any family members

32. In written submissions to the Tribunal, the applicant submitted that cancellation of this visa will impact his ability to continue employment in Australia and therefore affect his ability to financially support his family. The applicant stated that since the departmental cancellation, the applicant’s spouse has assumed the responsibility of being the main financial provider for the family and this had been extremely difficult for her in addition to caring for two young children. The applicant further submitted that any future prospect of applying for a skilled visa onshore will be taken away and that as his children are young and have spent many years in Australia returning to Pakistan could have detrimental consequences on their well-being.

33. The Tribunal notes that the applicant’s ability to continue employment in Australia and the financial impact that this has on his family, will be significantly hampered by his criminal convictions as well as his term of imprisonment. The Tribunal does not consider that if this cancellation would be affirmed, that it would add to his or his families burden in this regard. The Tribunal accepts that there may well be detrimental consequences to his family’s wellbeing, however again, nothing that would not already result from his criminal convictions and term of imprisonment.

34. For these reasons, the Tribunal places little weight on the applicant’s submissions as set out above.

    Circumstances in which ground of cancellation arose

35. As set out in the primary decision record, and set out above, the applicant’s visa was cancelled by the Department after Victoria Police advised it on 21 July 2019 that the applicant had been charged with three criminal offences, namely attempted rape, sexual assault and unlawful assault. The applicant is currently being held on remand at Hopkins Correctional Centre, awaiting a committal hearing on 1 April 2020.

36. Further, the primary decision record sets out the alleged facts leading to the charges being laid. It reports that the applicant was allegedly fraudulently operating as an Uber driver when the applicant offered two heavily intoxicated women a ride home under the pretence of being an Uber driver and during the ride the applicant sexually assaulted the women as described in the charges.

37. The Tribunal acknowledges the submissions made by the applicant in response, particularly as the allegations had not yet been decided by the criminal court and as the applicant denied the allegations, he was to be presumed innocent. The applicant submitted that a cancellation of this visa without his criminal charges having been heard and determined would be a contravention of his right to the presumption of innocence. The applicant submitted that any deliberation of this could not be made until the applicant’s criminal matter is determined.

38. The Tribunal acknowledges the applicant’s submissions in this regard and has awaited the outcome of the applicant’s criminal charges. As noted above, the applicant was convicted and sentenced on three counts of serious sexual offending. As a result, the Tribunal considers that the facts leading to the charges being laid, and then to this cancellation being imposed, have been proven to a criminal standard in the County Court. The Tribunal considers that the severity of the charges and now convictions, are a significant factor weighing against the applicant.

    Past and present behaviour of the visa holder towards the Department

39. There is no information before the Tribunal to indicate that there has been adverse behaviour, either past or present, of the visa holder towards the Department. 

40. The Tribunal attributes some weight in favour of the applicant in this regard.

    Consequential cancellations under s.140

41. The applicant’s spouse and two children were granted visas as dependants on his visa. In the event of cancellation, the visa holder’s wife and children’s visas would be consequentially cancelled under s.140(1) of the Act.

42. The Tribunal acknowledges the applicant’s written submissions that indicate that although the secondary applicants may make a visa application in their own right, this would separate the family unit and hardship would result.

43. The Tribunal considers that as a result of the applicant’s term of imprisonment that he is currently serving, the applicant’s family are already separated. The Tribunal further notes that as a result of the applicant’s convictions, it is likely that the applicant will need to depart the country in any event following his term of imprisonment.

44. For these reasons, the Tribunal places little weight on the applicant’s submissions as set out above.

    Mandatory legal consequences of cancellation

45. As noted by the delegate in the primary decision record and outlined in the applicant’s submissions on review, if the applicant’s visa is cancelled, he would become an unlawful non-citizen and be liable to be detained under s.189 of the Act and removed under s.198 of the Act. The Tribunal notes that any lengthy delay could be mitigated by the applicant agreeing to depart Australia.

46. Further, the applicant will be able to make only limited further visa applications under s.48 of the Act.

47. Cancellation of the applicant’s visa in these circumstances would also attract PIC 4013 and he may not meet the requirement for the grant of certain visa classes for a three-year period.

48. The Tribunal acknowledges the above legal consequences of cancellation but in the circumstances notes that there will be legal consequences of his convictions and term of imprisonment in any event. For these reasons, the Tribunal places little weight on the applicant’s submissions as set out above.

    Australia’s International obligations

49. As set out in the primary decision record, the delegate considered considerations imposed by the ICCPR and the United Nations Conventions on the Right of the Child, namely Article 3 that the best interests of the child must be a primary concern in making decisions that affect them; and Article 9 that children should not be separated from their parents against their will.

50. On review, the applicant submitted that it is in the best interests of his children to continue their schooling and their lives in Australia. The applicant raised that there could be adjustment issues if the children were forced to return to Pakistan.

51. The Tribunal acknowledges that the applicant’s children were aged six and four respectively when they arrived in Australia and have spent five formative years in Australia.

52. As noted by the delegate, in the event of cancellation, the applicants would likely return to Pakistan as a family unit and the children would not be separated from their parents. In response to this, the applicant raised possible harm that they would suffer if they returned to Pakistan which disputes the finding that the whole family unit could return to Pakistan and avoid separation. The applicant submitted that this raised non-refoulement obligations.

1. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

2. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

3. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is no suggestion that the applicant is prevented from validly applying for a protection visa by s.48A of the Act. Although the circumstances of this case might give rise to character issues that could prevent the applicant from meeting the criteria for a protection visa, the Tribunal considers that with reference to Ministerial Direction 75, the decision maker in any future protection application would be directed to consider the applicant’s claims before making a decision on character issues in any event.

4. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act. In this matter the Tribunal has no evidence or submissions before it other than that the applicant has, in his agent’s words, ‘alluded’ to possible harm if they were to return to Pakistan. Also mentioned is that the applicant’s brother-in-law is a Federal politician in Pakistan and any embarrassment caused to him might be taken out on the applicants and they could be subjected to harsh treatment and punishment. In the absence of any supporting information or evidence, the Tribunal is not persuaded that this harm is ‘likely’ as the applicant has put it or that the applicants are indeed at risk of harm if they returned to Pakistan.

5. The Tribunal further considers that there are no claims of harm made by the applicant against which a protection visa would not provide protection (see BCR16 and Goundar v MIBP [2016] FCA 1203).

   Any other relevant matters

6. On review, the applicant submitted that a further matter to be considered when exercising discretion is that the first and second named applicants are likely to be eligible for permanent skilled migration opportunities. Evidence in support was provided, namely a curriculum vitae for the first and second named applicants and a skills assessment for the applicant’s spouse. Further the applicant submitted that the applicants have contributed to the Australian community since arriving in Australia and letters of support from the Brotherhood of St Lawrence and from Sacred Heart Primary School were provided.

7. The Tribunal acknowledges the applicant’s submission in this regard and places some favourable weight on the reference material.

   Findings

8. As a result of the above, the Tribunal considers the ground for cancellation exists and further that it will not exercise its discretion favourably in all the circumstances.

9. The Tribunal considers that the objective seriousness of the charges and convictions imposed on the applicant far outweigh the submissions made on behalf of the applicant above.

10. Having regard to the applicant’s cumulative circumstances the Tribunal concludes that the visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Jade Murphy
    Member