Shah (Migration)

[2020] AATA 2354

Shah (Migration) [2020] AATA 2354 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Waqar Ali Shah

CASE NUMBER:  2000690

HOME AFFAIRS REFERENCE(S):          BCC2019/3408730

MEMBER:Nathan Goetz

DATE:19 March 2020

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 19 March 2020 at 10:05am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – risk to a segment of the Australian community – applicant charged with offenses – fear of punishment in Pakistan for crimes in Australia – Department subsequently granted a Bridging E visa – decision under review set aside           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 4

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 made by a delegate of the Minister for Home Affairs 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 citizen of Pakistan. He last arrived in Australia on 13 February 2019 as the holder of a student visa. This visa ceased on 15 March 2019.

3. On 14 March 2019 the applicant applied for another student visa. The applicant was granted the Bridging A visa on 15 March 2019 while the application for the student visa was being considered by the Department. Department records indicate that on 4 February 2020 the student visa application was refused.

4. On 29 October 2019 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of the Bridging A visa. The notice disclosed that the Department was considering cancelling the visa on the basis that the presence of the applicant in Australia is or may be, or would or might be, a risk to the ‘health, safety or good order of the Australia community or a segment of the Australia community’: s.116(1)(e).

5. The NOICC detailed that information from Victoria Police indicated the following allegations against the applicant.

6. In the early morning of 29 October 2017 the applicant was working as a taxi driver and was driving a taxi with registration number M1136. At approximately 2.56am the complainant, who was unknown to the applicant, hailed the taxi the applicant was driving. She entered the vehicle and sat in the front passenger seat and advised the applicant of the destination for the fare. At approximately 2.58am the applicant opened the sunglass holder above the vehicle’s rear view mirror which partially covered the interior CCTV camera located on the vehicle’s front windscreen.

7. At approximately 3:00am the applicant parked the taxi in the main driveway of 173 City Road, Southbank and looked at the complainant and asked “Can I touch you here>” while pointing at her chest and abdomen before touching her on the breasts and stomach with his fingers over her clothing. The applicant then asked “Can I touch you here?” before stroking the complainant’s upper right thigh over her clothing. At no time did the complainant consent to being touched by the applicant. The complainant then exited the taxi and the applicant closed the sunglass holder before driving away.

8. The NOICC further detailed that Victoria Police informed the Department that there was footage from the exterior of the building the captured the incident and that CCTV footage from within the taxi, although partially obscured by the applicant opening the sunglass holder, also captured the incident. Victoria Police also advised that the applicant was arrested on 29 October 2017 and that he participated in an record of interview where he provided the following information:

9. The applicant was contacted by his employer who advised him that he needed to report to the police station. He did not know why he needed to go to the police station. He picked up the complainant from McDonald’s and she sat in the front passenger seat of the taxi. The complainant asked the applicant how she looked and he told her she looked gorgeous. She asked the applicant to drop her off at her destination. The total distance was a few hundred meters and it was a two or three minute fare. The complainant told him that she was having difficulty breathing due to how tight her clothing was and asked the complainant to touch her clothing to see what fabric it was made of. The applicant touched the complainant on the upper right thigh over her leggings with his hand, and touched the complaint on her shoulder and on her ribcage. The applicant stated that the complainant was very happy. The applicant does not remember what happened after that and just dropped her off and left.

10. Victoria Police indicated that the applicant initially denied touching the complainant before stating that he asked her ‘Are you sure I can touch you?’ and she the complainant then agreed. When asked by Victoria Police why he pulled the sun-visor down, the applicant stated that there was a ‘log-in’ card located in the visor and he wanted to check if he was still logged onto the EFT machine in the taxi. The applicant stated that he used the card to log-in at the start of the shift, that he opened the visor to check the card and then closed it immediately. The applicant stated that he was not sure what effect having the visor down might have on the CCTV camera in the taxi but acknowledged that it blocked the camera.

11. Victoria Police advised that the applicant was charged on 5 February 2008 with two counts of sexual assault related to the above incident. The applicant was due to appear at the Melbourne Magistrates’ Court on 26 September 2019 for a contested hearing, but the matter was adjourned to 30 May 2020. The Tribunal has checked the Magistrates’ Court of Victoria list and case J10778350 concerning the applicant is listed for contested hearing on 11 May 2020 and not 30 May 2020 as suggested.

12. The NOICC invited the applicant to comment on this information and to address whether the ground for cancellation was made out, and to provide any further information to the Department as to why the Bridging A visa should not be cancelled.

13. The applicant responded to the NOICC and his response is noted as follows:

14. He has not committed any crime while in Australia and has not breached any of his visa conditions. The criminal charges against the applicant are ‘false and baseless’ and are ‘based on a statement by a person who was intoxicated and thus the credibility of the same is not trustworthy’. He claims he is not a criminal, is not a danger to society and therefore meets the character grounds required of Schedule 4 and therefore his visa should not be cancelled. He has never had any criminal history in Pakistan and has provided a Pakistani police clearance to support this claim. The applicant ‘has a very clean and moral good character’ and he has worked in a restaurant in Australia and two companies in Pakistan with patrons of all ages, genders and ethnicities without any issues related to his conduct. He has provided three reference letters from previous employers attesting to his character.

15. The Department indicated that it had considered the applicant’s response to the NOICC, but ultimately found that the ground for cancellation existed and that the reasons in favour of cancelling the Bridging A visa outweighed the reasons for not cancelling the visa. The Department made a decision to cancel the Bridging A visa on 6 January 2020. As noted in the notification letter accompanying the cancellation decision, this mean that the applicant became an unlawful-non citizen and liable to immigration detention and removal.

16. The applicant applied to the Tribunal on 14 January 2020 for a review of the refusal decision.

17. The Act requires the Tribunal, reviewing cases in its Migration and Refugee Division (MRD), to conduct a hearing prior to making its decision.[1] However, the Tribunal may make a decision without inviting an applicant to attend a hearing in three circumstances. In the circumstances of this case, the Tribunal has decided to make a decision without inviting the applicant to attend a hearing because the Tribunal can make a decision that is favourable to the applicant on the material available to the Tribunal: s.360(2)(a).

    [1] ss.360(1) and 425(1). Unless otherwise specified, all references in this chapter to legislation are references to the Migration Act 1958 and the Migration Regulations 1994 as now in force.

18. 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

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?

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. Although the applicant is right when he claims that he has not been found guilty of any crime, this does not equate to the ground for cancellation not being made out. The decision-maker need to be satisfied that the applicant is, may, would, or might be a risk. The decision-maker is allowed to take into account the fact that the applicant has been charged with offences. The Tribunal is not in a position to make an informed decision about the strength (or weakness) of the case against the applicant. It does not have the benefit of hearing all the evidence that would be given at a contested hearing. The Tribunal acknowledges that the applicant may be emphatic that he did not commit the crimes he is charged with, but the Tribunal must also acknowledge that the complainant may also be emphatic that the applicant did commit those crimes. It will be a matter for a judicial officer, acting as judge and jury in the summary criminal stream, to determine whether the case against the applicant is proven beyond reasonable doubt.

23. However, the Tribunal has considered the fact that the applicant has been charged with sexual offences that have not yet been finalised. To that end, the Tribunal has considered the Policy of the Victorian Director of Public Prosecutions[2]. Although the prosecution is undertaken by Victoria Police and not the Victorian Director of Public Prosecutions, the Tribunal is satisfied that the Victorian Police Prosecution Unit would apply these guidelines. This policy provides that a prosecution may only proceed if there are reasonable prospects of conviction and it is in the public interest to do so. According to that policy, whether a prosecution has a reasonable prospect of conviction will be determined having regard to all the admissible evidence, the reliability and credibility of the evidence, the possibility of evidence being excluded, any possible defences, whether the prosecution witnesses are available, competent and compellable, whether there is any conflict between eye-witnesses, whether there is any reason to suspect that the evidence may have been concocted, how witnesses are likely to appear in court, any contamination of evidence and any other matter relevant to whether a jury or magistrate would find the person guilty. The public interest is concerned with factors such as the seriousness of the offence, the age of the offence, matters related to offender (such as culpability, criminal history etc.), complainant related factors (such as the complainant’s attitude to prosecution) and other factors, such as community protection, the likely sentence, and the prevalence of the offence, among other things.

    [2] >

    Given that the criminal case against the applicant remains on foot, the Tribunal is satisfied that there are reasonable prospects that the applicant would be convicted of the criminal charges, and that it is in the public interest that the prosecution proceeds.  The Tribunal is satisfied that if the allegations against the applicant are true, it demonstrates that the applicant is a premeditated sexual offender who is liable to abuse the trust of any vulnerable person. The community would have cause to be fearful of someone who has engaged in the type of behaviour alleged against the applicant.

24. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

25. 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’.

26. The Tribunal has considered the fact that the applicant has no proven criminal history alleged against him, that there are no proven instances of him breaching his visa conditions, that he has been released on bail in connection with these offences, and that he is facing a tremendous amount of stress, depression and anxiety as a result of the criminal proceedings against him. However, in light of the fact that the applicant faces the charges that he does, those factors are not persuasive reasons not to cancel the applicant’s Bridging A visa.

27. The Tribunal has also considered the applicant’s claims that he is a genuine student and only has one subject remaining to pass with the Holmes Institute. He claims that he wishes to fulfil his educational goal and return to Pakistan and start his career. He claims that his family will be devastated if his visa is cancelled and he has to leave Australia without completing his studies, and that the mental state of the applicant’s brother (who is also in Australia) would be adversely affected, as would his brother’s studies and future career path. The Tribunal has considered these claims but is not persuaded by them. While the Tribunal recognises that the cancellation would have a negative impact on the applicant’s ability to continue with his studies and that this would be a disappointment to him and his family, in light of the criminal charges the applicant faces, the Tribunal does not give those considerations any weight.

28. The applicant also submitted that if his Bridging A visa was cancelled he faces threat of detention and removal from Australia which may prove to be very dangerous since the Shariyat (Sharia) laws in Pakistan are draconian and he may be killed without a trial or inquiry about his alleged offence. He wrote that he wishes to prove his innocence in Australia before returning to Pakistan.

29. The Tribunal is not satisfied that if the applicant’s Bridging A visa is cancelled that is the case. The Tribunal has had regard to most recent Department of Foreign Affairs and Trade Report concerning Pakistan from 20 February 2019. That report does not mention that Sharia laws are imposed on Pakistani citizens who have been charged with offences committed overseas. It is reasonable to expect that such detail would be included if this was the case. Further, if the applicant’s Bridging A visa was cancelled the Tribunal is satisfied that the Department would have a Criminal Justice Certificate issued in respect of the applicant to stop any deportation of the applicant to Pakistan pending the resolution of his criminal case in May 2020. Additionally, the Constitution of Pakistan prohibits a person from being prosecuted or punished for the same offence more than once, so even in the event that the applicant was found guilty of one or both of the offences at the conclusion of the contested hearing in May 2020, the Tribunal is not satisfied that any punishment would be imposed on the applicant in Pakistan as a result of the offending in Australia. The Tribunal is not satisfied that the applicant’s claims that he will be harmed in Pakistan if he is deported there are credible and the Tribunal gives those claims no weight.

30. The Tribunal has considered the circumstances in which the cancellation arose, namely the applicant being charged with criminal offences, and accepts that there will be a degree of hardship that may be caused to the applicant as he will no longer be able to pursue his studies. The Tribunal also accepts that there is no evidence of bad behaviour by the applicant in his past and present dealings with the Department. The Tribunal notes that there are no consequential cancellations that may result of the decision to cancel the Bridging A visa, and accepts that if the Bridging A visa is cancelled, the applicant would be prohibited under s.48 of the Act in the type of visas that he could apply for. The Tribunal accepts that the applicant may be subject to an exclusion period under Public Interest Criterion 4013 which would prevent the grant of further temporary visas for a period of three years.

31. However, given the circumstances in which the cancellation arose, the Tribunal is satisfied that none of the positive factors regarding neither the applicant’s past history, nor the hardship that may result as a result of the cancellation decision outweigh the reasons for not cancelling the Bridging A visa. In the Tribunal’s view, the offending the applicant is alleged to have engaged in is the stuff of nightmares and involves preying on vulnerable members of the community. The Tribunal is satisfied that the applicant is a risk to enliven s.116(1)(e)(i).

32. That said, the Tribunal cannot overlook the subsequent actions of the Department concerning the applicant. The Tribunal has considered those actions when deciding to exercise the discretion to cancel (or not cancel) the Bridging A visa. The Tribunal reminds itself that any discretion can only be exercised reasonably. When the Tribunal first looked at the cancellation decision, the Tribunal assumed that the applicant was an unlawful non-citizen in Australia as a result of the cancellation of the Bridging A visa. Noting that the applicant is not in immigration detention, the Tribunal assumed that the applicant had failed to attend on the Department to regularise his migration status, or that Border Force had not been able to locate the applicant and detain him as an unlawful non-citizen. However, and surprisingly, it is not the case that the applicant is an unlawful-non citizen despite the Bridging A visa being cancelled.

1. It transpires that the applicant has had his migration status remedied through the subsequent actions of the Department. After the applicant’s Bridging A visa was cancelled on 6 January 2020, the applicant lodged the review application with the Tribunal as previously discussed. On 17 January 2020, the Department granted the applicant a Bridging E visa which allowed the applicant to remain in the Australian community pending the review of his Bridging A visa cancellation. The Tribunal struggles to understand the logic of the Department cancelling the applicant’s Bridging A visa because he is a risk to the Australian community, and that very same Department then granting him a Bridging E visa to allow him to remain in the community. A bridging visa cannot be granted unless a decision-maker is satisfied that the applicant would abide by all conditions that may be imposed on that visa. In the circumstances of the subsequent Bridging E visa, the Department imposed a number of conditions, with the most relevant condition being the following:

   8564: Must not engage in criminal conduct.

2. The case note recorded with the grant of the Bridging E visa relevantly provides that ‘due to the client’s previous immigration history and engagement with the Department, I am satisfied that the client will abide by the conditions outlined above and the imposition of a security is not required’. The Department was satisfied that the applicant would not engage in criminal conduct if he was granted the Bridging E visa. This requires a high degree of satisfaction. The condition is not drafted that the applicant is an acceptable or remote risk of engaging in criminal conduct. The condition is absolute and the Department was satisfied that the applicant would not engage in criminal conduct. How the Department could get to that level of satisfaction is almost beyond comprehension, given that the same Department had previously cancelled the Bridging A visa on the basis that the applicant posed a risk to the Australian community. The community would rightly be concerned about the subsequent actions of the Department which resulted in the applicant being able to remain at liberty in the Australian community through the subsequent grant of a Bridging E visa, however that is what the Department has chosen to do, and the Tribunal is stuck with this situation. For the sake of completeness, the Tribunal would not have granted the applicant the Bridging E visa given the charges he faces.

3. The Tribunal recognises that it is not bound by the decisions of another decision-makers, however, the actions of the Department is extremely persuasive when the Tribunal comes to consider the exercise of the discretion to cancel (or not cancel) the applicant’s Bridging A visa.

4. It brings the Tribunal no joy to do so, but the Tribunal feels that it has no choice other than to not cancel the Bridging A visa in light of the subsequent actions by the Department. In the Tribunal’s view, to do anything other than set aside the cancellation decision would be unreasonable in the circumstances of this case.

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

   Nathan Goetz
   Member