Rafael Sinche (Migration)

[2018] AATA 4937

Rafael Sinche (Migration) [2018] AATA 4937 (18 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mack Jefferson Rafael Sinche

CASE NUMBER:  1812047

HOME AFFAIRS REFERENCE(S):           BCC2016/3779097

MEMBER:Sean Baker

DATE OF ORAL DECISION:  18 October 2018

DATE OF WRITTEN STATEMENT:         23 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 October 2018 at 3:49pm

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remit – charged with criminal offences – acquitted – no further charges – witness statements – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

CASES

Gong v MIBP [2018] FCCA 561
Tien v MIMA (1998) 98 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant had been charged with serious criminal offences. The Tribunal, differently constituted, affirmed that decision. The matter was remitted to the Tribunal on the basis that the previous Tribunal did not address the correct question, being the risk the applicant posed to the community or individuals.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 18 October 2018. The following are the reasons for that decision.

5. The applicant appeared before the Tribunal on 18 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Does the ground for cancellation exist?

8. 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].

9. 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.

10. In this case the applicant was charged with 2 serious criminal offences arising from one incident. At the time of the previous Tribunal decision, the applicant was on bail pending a further hearing in relation to these charges. He was released into the community on a Criminal Justice Stay visa, and there was no evidence he had been charged with or committed any further criminal offences.

11. At the time of this decision, the situation is different. The applicant has been found not guilty on both charges in October 2017. It is submitted that the charges laid against him were the only basis for the delegate and the previous Tribunal cancelling the visa, and the applicant now having been acquitted, the basis of the charges have been proven not to have occurred beyond reasonable doubt.

12. I do not believe this accurately represents the situation. Rather, the charges against the applicant have not been proven beyond reasonable doubt under the criminal law system. The question is, whether those charges, not having been proven to that high standard, leads to the conclusion that the applicant is not a risk to the community or individual(s).

13. Where I do agree with the submission is that the assessment of risk which I must undertake must be based on evidence. However, I do not agree that, having been found not guilty, there remains no weight in the fact that the applicant was charged with serious offences. I consider that the investigation and decision to charge the applicant with these offences must be given appropriate weight and consideration in context. That is, the applicant was alleged to have engaged in behaviour which, on investigation, the police and prosecutor believed to have sufficient basis to lead to a decision to charge the applicant.

14. I have considered whether this residual concern from the laying of charges, which have subsequently been found not to have been proven beyond reasonable doubt, leads to concern that the applicant may pose a risk to the community or an individual. I do not believe that this gives rise to a bass on which I could be satisfied such a risk occurs for the following reasons.

15. Of most significance, but, I consider, not determinative, is the acquittal. But further, there is no evidence before me that the applicant has been charged or engaged in any further or other criminal behaviour. This is significant because it does not indicate any pattern of offending behaviour or conduct by the applicant which could lead to a concern that he may be a risk to the community or individuals.

16. I also place weight on the evidence provided from the applicant’s former housemate who provided evidence that she did not believe he was a threat to anyone. I also place weight on the written and oral evidence of Mr Manteit who was the applicant’s student counsellor and had a very good knowledge of the applicant and his behaviour, who also did not believe that the applicant posed a threat to anyone.  I have found their evidence helpful in considering the risk.

17. On weighing all of the evidence that I have before me, and considering that the situation has changed considerably from the time the delegate made the original decision and the previous tribunal affirmed that decision, I find that there is not sufficient evidence before me to establish 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.

18. For these reasons, 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

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Sean Baker
    Member