Park (Migration)

[2019] AATA 3355

Park (Migration) [2019] AATA 3355 (27 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sang Jae Park

CASE NUMBER:  1825322

HOME AFFAIRS REFERENCE(S):          BCC2018/2036076

MEMBER:Ann Duffield

DATE:27 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 27 March 2019 at 12:54pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – risk to safety of Australian community or individual – charged with rape – licence suspended in the past – compliance with bail conditions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
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 21 August 2018 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(i)(e)(i) on the basis that he found the applicant, because of pending criminal charges, 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 of an individual or individuals. 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 27 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

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

6. The applicant is a citizen of South Korea born on 24 September 1988 (30 years old). He first arrived in Australia on 26 November 2011 on a working holiday visa. He returned to South Korea on 25 November 2012. In June 2013 he returned to Australia as a student and completed a Certificate IV and diploma. In 2016 he gained his Bachelor of Commerce and worked as an intern in an accounting firm. This turned into a career position in July 2017.

7. He applied for and received a subclass 485 visa on 6 April 2017, the cancellation of which is the subject of this review. That visa is due to expire on 6 April 2019.

8. On 14 January 2018 the applicant was charged with a rape that was alleged to have occurred on 12 January 2018. He appeared in court and was bailed to appear at a future date. He was required to surrender his passport. The applicant claims he is innocent of all charges.

9. The delegate for the Minister wrote to the applicant on 29 June 2018 advising him that they were considering cancelling his visa. He responded through his solicitors on two occasions in July 2018. After considering the applicant’s response the delegate proceeded to cancel the applicant’s visa on 21 August 2018. He did not at any time breach the conditions of his bail.

10. The Department of Home Affairs took him into detention in October 2018.

11. The applicant is to appear before the court for the resumption of a partly heard committal hearing, which was adjourned to May 2019. If the charge goes to trial it is likely to occur in 8 to 12 months from committal.

12. The Tribunal received a submission from the applicant’s representative in February 2019.

13. The Tribunal summonsed the applicant’s person history from the Queensland Police Service and put that information to him on 21 March 2019 informing him that the material would form a reason or part of the reason for affirming the decision under review. The applicant was informed that he may respond to that information in writing or discuss it with the Tribunal at the scheduled hearing.

14. The applicant has been charged with the following offences since his arrival in Australia:

    a.Disobeying the speed limit – 13 June 2017;

    b.Driving above the middle alcohol limit – 12 June 2017; and

    c.Rape – 12 January 2018.

15. The Tribunal received a further submission from the applicant on 25 February 2019. In that submission the applicant argues that there are no grounds to cancel as the applicant is innocent of the charges and claims that he and the alleged victim had consensual sex. The applicant claims that he intends to vigorously defend the charges. The applicant maintains he is not a risk to the safety of the Australian community or to any individuals or an individual therein.

16. The applicant strongly argues that it would be inappropriate for the Tribunal to accept the contents of the court brief, premised on evidence given to police by witnesses, as true. To accept that information as true would be inappropriate as it has not been tested and because the applicant claims to be innocent. He claims that the advice of his criminal solicitors is that there are significant inconsistencies in the accounts provided to the police by the alleged victim and witnesses.

17. In a letter to the Department, the applicant states that he has had no previous encounters with the law and has complied with all of his visa conditions over his seven or so years in Australia. He intends to apply for permanent residency before the expiry of his visa on 6 April 2019.

18. At the time of the hearing the applicant provided the Tribunal with a copy of his Bail Undertaking. The conditions imposed include a requirement that the applicant not attend a named address or have any contact, either directly or indirectly, with the alleged victim, two named witnesses and unnamed Crown witnesses. The applicant told the Tribunal that there was only one Crown witness and named that person. The Tribunal notes that the person named was not the person the applicant had put forward as a witness on his behalf to the Tribunal proceedings.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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)(i). 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

20. 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].

21. 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.

22. The applicant has been charged with the serious offence of rape and has had his licence suspended in the past.

23. His bail conditions preclude approaching the alleged victim, witnesses to the event or unnamed Crown witnesses as set out in paragraph [18].

24. The applicant had not breached any of his bail conditions prior to being taken into immigration detention.

25. The applicant submits that he has been on bail in relation to these matters and has abided by all the conditions of his bail including not to approach the alleged victim or witnesses and Crown witnesses where the alleged incident took place. He has also relinquished his passport.

26. The applicant and his adviser submit that, as such, the applicant is highly unlikely to be a risk to any individual or individuals in the Australian community, or a risk to the Australian community or affect the good order of the community generally. The Tribunal notes that the applicant has abided by his bail conditions since he was charged. The Tribunal views this in a strongly positive light.

27. The Tribunal put to the applicant that it found the charges to be particularly serious and whilst not forming a view on the applicant’s guilt or innocence of the charges the Tribunal could not completely disregard the prosecution brief. In the Tribunal’s mind it was unlikely that the police would pursue charges which it did not believe could be successfully defended and equally unlikely that a woman would put herself through the intrusive and confronting procedures that the alleged victim would have been required to go through in order to press the charges.

28. In this regard the Tribunal notes the applicant’s willingness to discuss the charges and to provide witnesses. However, the Tribunal takes a strong view that it is not its task to make findings about the guilt or innocence of the applicant only whether or not there are grounds to cancel his visa, and, if there are, whether there are compelling reasons why the visa should not be cancelled.

29. The Tribunal put to the applicant that it was not its task to find him guilty or innocent of the charges he currently faces, or to make a finding as to the veracity of the prosecution brief. The Tribunal declined the offer of his witness’s testimony.

30. The Tribunal gives significant positive weight to the applicant’s good behaviour and his compliance with his bail conditions which have been in place since July 2018.The Tribunal believes this is strong evidence that the applicant does not pose a risk to the health, good order or safety of the community or to the safety of an individual or individuals.

31. It seems to the Tribunal that if the Department has a strong view that the applicant should not hold a substantive visa then it is within their purview to consider cancelling the visa under prescribed grounds as set out in s.116(g) of the Migration Act, either immediately, or if the charges against him are made out, at that time.

32. The Tribunal, having weighed all of these considerations, is not satisfied that the case can be made out that 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.

33. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

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

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Ann Duffield
    Senior Member