MZAJA v Minister for Immigration
[2017] FCCA 448
•30 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAJA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 448 |
| Catchwords: MIGRATION – Application for judicial review – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.116, 429. |
| Applicant: | MZAJA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2094 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 30 January 2017 |
| Date of Last Submission: | 30 January 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 30 January 2017 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2094 of 2016
| MZAJA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore)
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a delegate’s decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
The application before the Court was lodged 69 days after the Tribunal’s decision and, therefore the applicant also requires an extension of time to bring this application.
To understand this case, one has to go back to 2011. The applicant came to Australia in January 2011 on a prospective marriage visa on the basis that he was travelling to marry his sponsor, Ms S. By October 2011, the prospective marriage visa had expired and the applicant has held various bridging visas since then.
The bridging visa, the subject of this application, was granted in April 2014. The applicant has not held a substantive visa since October 2011. The reason that the applicant has continued to receive bridging visas is that he sought a protection visa and also pursued his spouse visa. The application for a protection visa was refused, and in December 2015 an application for judicial review of the protection visa decision was also dismissed. In April 2014, a delegate refused his spouse visa application. On the applicant’s case, the relationship with Ms S. had ended and Ms S. had claimed that he had committed family violence against her and obtained an intervention order.
It transpires that the original decision to refuse his spouse visa application was not notified to him in accordance with the Migration Act 1958. As a result, the Department had a delegate consider the application again. The delegate refused his spouse visa on 25 January 2016. On 8 August 2016, the Tribunal affirmed the decision of the delegate. The applicant has not sought judicial review of the Tribunal’s decision. As a result, his bridging visa would have expired in accordance with cl.010.511 on 12 September 2016 (see cl.010.512).
In the intervening period, the Department issued a Notice of intention to cancel the bridging visa on 15 June 2016. The particulars of the grounds for cancellation were set out and are as follows:
On 10 May 2016 Victoria Police charged you with one count of rape under State law and you were required to attend Melbourne Magistrates Court on 3 June 2016. Victoria Police advised on 9 June 2016 that you failed to appear in court for your hearing.
According to the police record of charges, the alleged circumstances in which the offence occurred are as follows;
On 8 June 2015 you were driving a taxi
On 8 June 2015 you allegedly raped your passenger
While the hold of a Bridging visa Class WA subclass 010 you have been charged with a serious sex offence against an indiscriminate member of the Australian community while travelling in your taxi which I consider placed the victim in a vulnerable state. I am satisfied that you pose a risk to the safety of the Australian community in particular women.
The seriousness of the charge and circumstances which led to the alleged offence being committed indicates you could be a risk to the safety of the Australian community, especially women. I also consider the fact you did not appear before the court in relation to the charge, indicates your lack of regard for due process in relation to outstanding legal matters.
For the reasons that you have been charged with a serious sexually based offence when in a position of trust and your failure to appear before the court on 3 June 2016; I consider that the ground at section 116(1)(e)(i) is made out in this case and therefore your visa may be cancelled.
On 1 July 2016, a delegate cancelled the bridging visa. On 8 July 2016, the applicant applied to the Tribunal to review that decision. On 19 July, the applicant had a hearing at the Tribunal with an interpreter. On 21 July 2016, the Tribunal affirmed the decision of the delegate to cancel the bridging visa.
Futility of Application
In this case, had the bridging visa not been cancelled, it would have expired on or about 12 September 2016. If I make orders today quashing the cancellation, the visa will still expire in September of last year. As a result, it is futile for me to make an order, as regardless of the outcome of this case, the bridging visa will have expired at the latest by September last year. In the event that I am wrong in this conclusion, I proceed to consider the Tribunal’s findings on the cancellation.
Tribunal’s Findings
For the reasons set out in the Tribunal’s decision, it was satisfied that a ground for cancellation existed under section 116(1)(e) of the Act which provides:
1. Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals;
The Tribunal correctly identified the issues before it, saying:
34. The Tribunal is satisfied that the presence of the visa holder in Australian may be or might be, a risk to the safety of a segment of the Australian community, in particular females in Australia. In reaching this conclusion; the Tribunal took into consideration and placed greater weight on the charges that have been laid, the police summary, and the evidence the police have indicated they will be relying on in support of the criminal charges. The Tribunal did have regard to the applicant’s oral evidence and to his written submission regarding his account of events but placed less weight on this material. The applicant does acknowledge that he did work as a taxi drive, that he did take the complainant to Brunswick Road and then to Preston and then to Heidelberg West in his taxi on the night of the alleged incident. However, the Tribunal was troubled that the applicant initially told police that he dropped the passenger off in Brunswick Road and only later acknowledged that he had taken the complainant to other locations when police highlighted thye had evidence that he had attend other locations with the complainant. It is apparent that the applicant had and the complainant were together on the relevant night, however they give a different account of the events that occurred, Further, the Tribunal had some reservations regarding the applicant’s account, given various inconsistent statements he made during the hearing in relation to other matters. It is not for the Tribunal to determine whether the alleged criminal conduct occurred. Ultimately, it is a matter for the criminal justice system to determine whether the applicant has engaged in criminal conduct. The applicant states that he has pleaded not guilty. The issue for the Tribunal is whether the presence of the visa holder in Australia us 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 considered there may be or might be a risk to a segment of the Australian community after having regard to the information gathered as part of the criminal investigation. In addition, the Tribunal took into consideration the statements by Ms S to the Department and the previous intervention order that was made by the Magistrates’ Court in relation to the applicant’s former partner as indicative of previous claims of violence against a woman in Australia. The Tribunal considers the intervention orders indicate the Court was satisfied in the past that the applicant has committed family violence such that it was appropriate to make an intervention order.
When considering the exercise of the discretion to cancel the visa, the Tribunal did have regard to the circumstances of the applicant’s case. The Tribunal considered the applicant’s migration history, finding:
52. After considering the applicant's migration history the Tribunal made the following assessment. The Tribunal finds that the applicant travelled to Australia in January 2011on the basis that he would marry Ms S on a subclass 300 prospective spouse visa. The applicant did marry Ms S in September 2011. The following month in October 2011 he lodged a Partner visa application. Within two weeks of lodging that partner application Ms S withdrew her sponsorship and made claims that the applicant had been violent towards her. Since that time the applicant and Ms S have not reunited or reconciled. Some years later, the partner visa application subclass 820 was refused on the basis that the PIC 4020 had not been met. The subclass 801 partner visa application has also been refused on the basis that the applicant never held the subclass 820 partner visa. There is a pending appeal before the Tribunal in relation to the refusal of the subclass 801 application, however that review application has little prospect of success. The applicant has no other pending applications to regularise his migration status in Australia. The applicant has lodged a protection visa application in the past however this application was refused and the RRT upheld this refusal. For migration purposes, the applicant does not appear to have any substantive reason to remain in Australia. It seems that his only reason for remaining in Australia at the current time is his pending criminal offences. In the period of time that the applicant has been in Australia between January 2011 and July 2016 he has held only one substantive visa for a period of nine months. He ceased to hold a substantive visa in October 2011. The applicant's migration history and the lack of any pending visa application with any merit is a factor that indicates the bridging visa should be cancelled. Further, the applicant's failure to disclose relevant information in his subclass 820 visa application to the Department is also a factor that indicates the bridging visa should be cancelled.
When considering the circumstances in which the ground for cancellation arose, the Tribunal also had regard to the charges that had been laid against the applicant for sexual offences and the previous intervention order granted against him. The Tribunal concluded:
54. The Tribunal has considered the circumstances in which the ground for cancellation has arisen. The relevant information is set out in detail earlier in this statement of reasons. The Tribunal took into consideration that the charges relate to sexual offences involving a young woman aged 18 years who was affected by alcohol and drugs and therefore vulnerable. The Tribunal was also mindful that the alleged offending occurred in the context of the applicant working as a taxi driver where he had frequent dealings with members of the public, including females. The Tribunal also took into consideration that the intervention order was made against the applicant as his then wife alleged that he repeatedly hit her. The Tribunal considers that there is a risk to other females and that his alleged sexual offences and violence has involved both a woman known to him and a woman unknown to him, and that this alleged conduct has occurred in both 2011 and 2015, several years apart. Whilst the applicant is no longer a taxi driver, the Tribunal considered that the applicant would still come into contact with female members of the public if he is released from detention. The Tribunal considers that the circumstances are serious and there may be or might be a risk to Australian females and the circumstances are such that they weigh in favour of cancelling the visa.
The Tribunal went on to consider any hardship that may be caused to the applicant or family members if his bridging visa were cancelled. The Tribunal considered his previous application for a protection visa, his claims of various medical conditions, his ability to provide financial support to his family, his pending criminal charges, and his claim to have found another spouse. Ultimately, the Tribunal concluded that these matters were outweighed by the other factors and that the bridging visa should be cancelled (see paragraph [93] of the Tribunal’s decision).
Grounds for application for judicial review
The grounds for judicial review are set out in the application as follows:
1. My visa have been cancelled by Immigration on 1st July 2016 and then I applied for review at Administrative Appeals Tribunal and then my visa have been cancelled by Administrative Appeals Tribunal.
2. I am not agree with the Department of Immigration and border protections and Administrative Appeals Tribunal decisions.
3. My case is in process at Melbourne Magistrates Court and I have not pleaded guilty yet.
4. I do not think it is right to cancel my visa because I am still innocent until proven guilty by the court.
5. Any can be, might be, could be, may be potentially risk for the community. all I request that Department of Immigration and border protection, police, Administrative Appeals Tribunal and Court need to read both side of the story to find out the truth and take the right decision.
These grounds confuse the test of the risk to the Australian community with the test for guilt or innocence of criminal charges. Section 116 of the Act does not require the Tribunal to wait until a person is convicted, but to assess the risk that they present to the community based upon the information available to the Tribunal. The Tribunal appears to have done that.
Before me, the applicant raised a further potential ground. The applicant said that there were things he was not able to disclose that were private matters relating to his wife, because he says that guards from the detention centre were present during the hearing. He points to s.429 of the Act, which provides
The hearing of an application for review by the Tribunal must be in private.
The applicant did not want to disclose those things in open Court, as guards from the detention centre are here today. I offered him the opportunity to write them out in his own language and have the interpreter translate them into English for me and the barrister for the Minister to read. The applicant explained that these matters related to his partner visa application, not the bridging visa application.
In the absence of evidence, I am not persuaded there are matters of substance that he was not able to disclose. With respect to the technical argument that the hearing before the Tribunal must be “in private”, it seems to me that the proper interpretation of that phrase means simply that the Tribunal’s hearing rooms are not open to the public generally. It could not mean that people who have a proper and official purpose cannot be present in the hearing room. In all cases involving people in detention or custody, there will inevitably be present guards in the hearing room to ensure the safe conduct of the hearing. Similarly, there will be clerks whose job it is to operate the recording equipment and otherwise assist the Tribunal in its functioning.
If there is information relating to a particular guard that requires a separate guard or alternate security presence; that would need to be raised and clearly articulated before the Tribunal. The claim simply that it would be embarrassing to discuss the case with the guards present does not seem to me to be sufficient on its own to show any breach of s.429. In any event, this argument only relates to the spouse visa application, not the bridging visa application.
Extension of Time
In this case, the applicant seeks an extension of time to bring these proceedings. The applicant explains that, having been held on Christmas Island, he was faced with delays and difficulties preparing his appeal application. This fact, coupled with the fact that his English is at a low level, adequately explains the delay. The significant issue when considering the application for an extension of time is whether or not the applicant has an arguable case.
For the reasons set out above, I am persuaded that the applicant’s application is not arguable because he has not shown an arguable error on the part of the Tribunal. Further, his application would be futile, because the bridging visa would expire during the course of 2016.
I therefore dismiss the current application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 9 March 2017
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