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

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

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 Mirza (Migration)

Details

AGLC: Mirza (Migration) [2021] AATA 3907
Case: [2021] AATA 3907
Decision Date: 30 September 2021

CaseChat Overview and Summary

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 485 (Temporary Graduate) visa. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the safety of the Australian community, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had been convicted of criminal offences, and the Tribunal was required to determine whether this ground for cancellation was made out and, if so, whether the visa should be cancelled.

The Tribunal was required to consider whether the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community. The Tribunal noted that the threshold for this ground did not require a direct, solid, or certain foundation, but could arise from the possibility of past events. The meaning of "good order of the Australian community" was considered in light of previous case law, which indicated it concerned activities impacting public order, the administration of law, or creating public disruption.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied. In exercising its discretion on whether to cancel the visa, the Tribunal considered the applicant's circumstances, including the purpose of his stay in Australia, which was to study and seek permanent residency. The applicant also raised concerns about his safety and that of his family if they were to return to Pakistan, citing adverse treatment and threats from his family, including a politician brother-in-law. However, the Tribunal placed little weight on these submissions, noting that the applicant was not prevented from applying for a protection visa. Ultimately, the Tribunal concluded that, having regard to the applicant's cumulative circumstances, the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant's Subclass 485 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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 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. 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 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]. 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.

Decision

Reasons for decision

Having regard to the applicant’s cumulative circumstances the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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 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 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. 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. 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. 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. 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. 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. For these reasons, the Tribunal places little weight on the applicant’s submissions as set out above. The extent of compliance with visa conditions 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.