Puig Rademacher (Migration)

[2018] AATA 1096

Puig Rademacher (Migration) [2018] AATA 1096 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Erik Puig Rademacher

CASE NUMBER:  1801892

DIBP REFERENCE(S):  BCC2017/4980002

MEMBER:Kira Raif

DATE:4 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 04 April 2018 at 2:29pm

CATCHWORDS

Migration – Cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – Criminal charges – No formal conviction – Applicant disputes the charges – Tribunal is satisfied the applicant will comply with his bail conditions – Visa cancellation grounds under s116(1)(e) do not exist

LEGISLATION

Migration Act 1958, s 116

CASES
Gong v Minister for Immigration [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
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 18 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Germany and Spain, born in December 1991. He was holding a Bridging A visa on the basis of an application for a partner visa. On 29 December 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant’s presence in Australia is or may be, or would or might be, a risk of the kind specified in s.116(1)(e) of the Act. The applicant provided his response to the NOICC on 8 January 2018 and his visa was cancelled on 18 January 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and other witnesses nominated by the applicant. 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 set aside.

   Relevant law

4. 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.

5. 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.

6. 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 (Tien) 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.

7. There is no definition of ‘risk’ in the Act or Regulations and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001). The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong v Minister for Immigration [2016] FCCA 561 at [41] (Gong)). 

8. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The applicant travelled to Australia in December 2016 holding a working holiday visa, which expired after 12 months. The applicant then applied for a visitor visa, which was refused and on 17 December 2017 the applicant made the application for a partner visa. He was granted a Bridging A visa in association with that application.

10. On 22 December 2017 the Department of Immigration received information indicating that on 1 December 2017 the applicant had been charged with a number of offences in the Townsville Magistrates Court as follows:

    a.Indecent treatment of child under 16 (indecent film) Part 4 Chapter 22, paragraph 210(1)(e) of the Criminal Code Act 1899 (Qld)

    b.Possessing dangerous drug contrary to Part 2, subsection 9(1) of the Drugs Misuse Act 1986 (Qld)

    c.Possessing utensils or pipes etc that had been used contrary to Part 2, paragraph 10(2)(b) of the Drugs Misuse Act 1986 (Qld)

    d.Indecent treatment of child under 16 (indecent film) Part 4 Chapter 22, paragraph 210(1)(e) of the Criminal Code Act 1899 (Qld)

    e.Indecent treatment of child under 16 (indecent film) Part 4 Chapter 22, paragraph 210(1)(e) of the Criminal Code Act 1899 (Qld)

11. These offences are recorded to have occurred on 19 and 20 October 2017 and there are ongoing proceedings in the Townsville Magistrates Court.

12. The primary decision record indicates that the applicant was employed as a teacher’s aide at the school where the alleged incidents took place and while employed as the teacher’s aide, he was alleged to have exposed students between the ages of nine and 10 years to an indecent image of himself.

13. In his written response to the NOICC the applicant provided a number of character references, as well as evidence of having completed a course. The Tribunal accepts that those who provided character references to the applicant believe him to be a good person, although the Tribunal is mindful that most of these references do not make any mention of the charges, which might suggest that the writers were unaware of the charges. The Tribunal is not satisfied those who provided the character references may necessarily be aware of the applicant’s circumstances but as noted above, the Tribunal accepts they believe the applicant to be a person of good character. The Tribunal also acknowledges the oral evidence relating to the applicant’s good character.

14. In the written submission from the applicant’s representative dated 8 January 2018 and the subsequent submission to the Tribunal of 28 March 2018, it is stated that there is presently no evidence available to support the charges and the applicant disputes the charges and intends to proceed to trial to defend the charges. It is noted that the charges arise from an allegation that on one occasion three children were shown an indecent image and it was not a protracted sexual assault and there is no allegation of physical contact. The applicant claims that he denies the charges and the images found by the police on the phone are not consistent with the images the children allege they saw. The applicant claims that the children were playing with his phone in the classroom. With respect to the drugs charges, the applicant states that the cannabis was not weighed and these charges were not considered in the NOICC. The applicant claims that the image alleged to have been shown to the children was not located with the police and there is no admissible evidence that an offence had been committed. The applicant claims that it would be inappropriate to cancel his visa before the evidence is produced in court. The applicant’s evidence is that the children had been playing on his mobile phone.

15. The Tribunal also acknowledges the applicant’s submission that he disputes the charges and the claimed weakness of the presented evidence against him. The applicant refers to the presumption of innocence. However, the ground for cancellation is not limited to a finding of guilt and it is not the role of this Tribunal to determine the applicant’s guilt or innocence or the strength of the charges against him. It is entirely possible to determine that one’s presence in Australia is or may be a risk whether or not a formal conviction has occurred. As observed by Smith J in Gong at [45], there is no requirement in s.116(1)(e) that there be a ‘determination, one way or the other, of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give any evidence’.

16. The applicant also states that the criminal process will take time and he has been granted bail. The applicant states that he was charged in October 2017 and has been in the community since that time and there are bail conditions imposed by the court to remove any potential risks. The Tribunal is mindful, however, that considerations for the grant of bail are quite different to those that arise under s.116(1)(e). That provision is very broad and it is sufficient to give rise to the cancellation ground if the applicant’s presence merely ‘may’ or ‘might’ be a risk.

17. The applicant argues there is no risk to the community and that the charges brought against him do not fall within the type of public order offending contemplated in Tien. The applicant notes that he has been working within the community since his arrival in Australia and has been actively involved in sporting endeavours in the Townsville area and there had been no previous incidents which would support the assessment that he is a risk. He has no criminal history and no criminal record.

18. In oral evidence to the Tribunal the applicant confirmed that the charges are serious but he does not believe he is a danger to the community. He said he has been compliant with the law and has done whatever was required of him. He has shown an outstanding work ethic and has been a good citizen and has integrated into the community and wants to be in the community and support his partner, which is difficult to do if he remains in detention. The applicant said he has a young brother and he is a loving and caring person and the allegations are not true. He wants to fight his case.

19. The applicant has been warned about self-incrimination and offered very little detail about the circumstances leading to the charges. The applicant told the Tribunal that the three charges of indecent treatment relate to three individuals rather than separate incidents. With respect to the two charges relating to drugs, the applicant said that they had people over at their house and the drugs and utensils belonged to another person and that person admitted that to the police. The drugs did not belong to him.

20. The applicant stated that he has been living in other countries and has never been involved in any criminal conduct. He has been in Australia for over a year and this is the first charge. The Tribunal accepts that the applicant has not been convicted of other offences.

21. The Tribunal has considered the nature of the charges and the seriousness of the charges, as well as the circumstances as put forward by the applicant and set out in the primary decision record. The Tribunal acknowledges that the applicant denies any wrongdoing and that there has been no finding of guilt, although the Tribunal does not consider such matters to be determinative. However, the Tribunal also acknowledges the applicant’s evidence that his conduct was not predatory and, on the applicant’s evidence, was not intentional. The applicant’s evidence is that he did not show the phone to the children but the children were playing with his phone. He did not seek out the children and did not initiate the conduct but simply gave his phone to the children. That evidence does not appear to be inconsistent with the Queensland Police Service Court Brief that appears on the Departmental file, although the Tribunal is clearly not in the position to make any findings in relation to these circumstances.

22. The Tribunal also places weight on the fact that it is a condition of the applicant’s bail that he should not approach any school. There is nothing to suggest that the applicant has breached bail before he was taken into immigration detention and he has indicated to the Tribunal his willingness to abide by bail conditions. The Tribunal has formed the view that the opportunities for the applicant to have interactions with children or young people are very low. The applicant told the Tribunal that if released from detention, he may pursue employment in a restaurant and he also wants to undertake studies. The applicant will not work at or near schools. The Tribunal also accepts that the applicant is unlikely to do anything that would jeopardise his bail or cause him to be placed in criminal detention or that may jeopardise his ongoing partner visa application. Consideration of risk for the purpose of s.116(1)(e) is a forward-looking one. The Tribunal has formed the view that in such circumstances, the risk of reoffending is very low.

23. There is no evidence the applicant is violent or that he has committed or is charged with violent offences. The applicant’s evidence is that the alleged conduct is entirely out of character and the applicant presented numerous character references, as well as the police reports from the countries of his former residence. The charges relate to the applicant allegedly providing access to his mobile phone, containing indecent images, to minors. Given the bail conditions, it is difficult to see how this conduct could arise over the remainder of the duration of his bridging visa. The applicant cannot work in a school or with children, given his bail condition. Having regard to the circumstances, it is highly unlikely that the applicant will be a risk to the health and safety of the Australian community or a segment of the Australian community.

24. Overall, the Tribunal is not satisfied that the applicant’s presence in Australia is or may be a risk to the health or safety of the Australian community or a segment of the Australian community.

25. The Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member