Shaheen (Migration)

[2022] AATA 108

Shaheen (Migration) [2022] AATA 108 (14 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Zahid Suleman Shaheen

CASE NUMBER:  2107004

HOME AFFAIRS REFERENCE(S):          BCC2021/850786

MEMBER:Jason Pennell

DATE:14 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 14 January 2022 at 1.00pm

CATCHWORDS

MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 - Temporary Skill Shortage – risk to the health or safety of an individual – applicant charged with criminal offences – applicant’s employment terminated – offer of employment – court proceeding against the applicant discontinued – cancellation power does not arise – decision under review set aside          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994

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 24 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the presence of the applicant in Australia is a risk to the health or safety of an individual in the Australian community. 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 by video hearing before the Tribunal on Thursday 18 November 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

4.The Tribunal hearing was conducted without the assistance of an interpreter.

5.The applicant was represented in relation to the review by his Lawyer, Mr Kazmer Joseph Michael Ujvari of Ujvari Lawyers.

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)(ii). 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.

Migration History

8.The applicant is a 56-year-old male from Pakistan who first travelled to Australia between 12 November 2009 and 5 February 2010 on a Business (Short Stay) visa (UC-456).

1. He was subsequently granted two further Business (Short Stay) visas (UC-456) on 27 April 2010 and 8 February 2011, followed by two Temporary Work (Skilled) visas (UC-457) granted on 24 May 2011 and 1 May 2015. On 9 May 2019 the applicant was granted a Temporary Skill Shortage (GK-482) visa (‘the visa’), which was cancelled by the Department on 24 May 2021.

10.Since arrival, the applicant has departed Australia on several occasions and has currently been onshore since 25 September 2018. The applicant is currently the holder of a Bridging Visa E (WC-050) with attached visa conditions 8506 (notify new address), 8207 (no study or training) and 8564 (must not engage in criminal conduct).[1] Travel details are as follows:

[1]    Department of Home Affairs - Movement Record dated 1 September 2021, Tribunal Case file 2107004, Doc Id No: 8778653.

·12/11/2009          Arrived in Australia on Business (Short Stay) visa (UC-456)

·05/02/2010          Departed Australia on Business (Short Stay) visa (UC-456)

·15/05/2010          Arrived in Australia on Business (Short Stay) visa (UC-456)

·09/08/2010          Departed Australia on Business (Short Stay) visa (UC-456)

·24/08/2010          Arrived in Australia on Business (Short Stay) visa (UC-456)

·21/11/2010          Departed Australia on Business (Short Stay) visa (UC-456)

·15/06/2011          Arrived in Australia on Temporary Work (Skilled) visa (UC-457)

·18/09/2012          Departed Australia Temporary Work (Skilled) visa (UC-457)

·03/10/2012          Arrived in Australia on Temporary Work (Skilled) visa (UC-457)

·13/09/2018          Departed Australia on Temporary Work (Skilled) visa (UC-457)

·25/09/2018          Arrived in Australia on Temporary Work (Skilled) visa (UC-457)

1. On 26 March 2021, the Department received information from the South Australia (SA) Police indicating that the applicant had been charged with 2 x Indecent Assault – CLC 56(1); and Serious Criminal Trespass in Place of Residence - CLC170(1)[2] (‘the alleged offences’).

   [2]    Department File Number BCC2021/850786, Doc ID No: 8500488.

2. On 7 April 2021 the Department was informed by the nominating business that the applicant’s employment had been terminated on 1 April 2021[3].

   [3]    Department File Number BCC2021/850786, Doc ID No: 8500466.

3. On 3 May 2021 the Department emailed the applicant a Notice of Intention to Consider Cancellation (NOICC)[4] as they had received information from the South Australia (SA) Police indicating that the applicant had been charged with the alleged offences and, on the basis of this information, the applicant’s presence was a risk to the health and safety of an individual in Australia. The Department received a response to this NOICC from the applicant on 17 May 2021.

   [4]    NOICC dated 3 May 2021, Department File Number BCC2021/850786, Doc ID No: 85000473 

1. On 24 May 2021 the Department cancelled the applicant’s Temporary Skilled Shortage (GK-482) visa under section 116(1)(e)(ii) of the Act, on the basis that the applicant’’s presence in Australia is or may be a risk to the health and safety of an individual, namely his alleged victim[5].

   [5]    Primary decision record dated 24 May 2021, Department File Number BCC2021/850786, Doc ID No: 8500485.

2. On 26 May 2021 the applicant lodged an application for review in respect of this decision to cancel his visa resulting in this AAT case number 2107004.

Submissions

1. The applicant submitted the following material to Department:

   a)Numerous statutory declarations and letters from personal and professional referees attesting to the applicant’s good character as well as professional work ethics and his contributions to the community[6]

   [6]    Department File Number BCC2021/850786, Doc ID No: 8500477.

   b)A copy of an Affidavit from the alleged victim related to her statement to SA Police dated 4 March 2021[7]

   [7]    Department File Number BCC2021/850786, Doc ID No: 8500480.

   c)A copy of a file note recorded the conversation between the AHPRA investigator and a former Practice Manager at the Clinic employing the applicant, dated 17 March 2021[8]

   d)A copy of a file note recording a conversation between the AHPRA investigator and the applicant, dated 15 February 2021[9]

   e)Copies of information regarding the charges from SA Police dated 29 March 2021, accompanied by a copy of an unsigned document titled Written Plea Admitting Charge[10]

   f)Reference and letter of support from the former General Manager at AHA Clinics, which owns and operates the nominating business, addressed to The Medical Board of Australia, dated 19 April 2021[11]

   g)A copy of the Bail Agreement to release the applicant on bail, dated 30 March 2021[12]

   h)A copy of the Summary of complaint or concern provided to AHPRA by the current Practice Manager at the employing clinic, dated 1 February 2021[13]

   i)A copy of a file note recording the conversation between the AHPRA investigator and a representative of SA Police in relation to a witness statement made from the alleged victim’s friend and witness of the incident, dated 18 February 2021[14]

   j)A copy of an affidavit provided as a statement to SA Police made by the alleged victim’s friend and witness, dated 4 March 2021[15]

   k)List of relevant case law titled List of Authorities referred to by the applicant’s representative to respond to the NOICC[16]

   l)Submissions made by the applicant’s representative in response to the NOICC, dated 17 May 2021[17].

   [8]    Ibid.

   [9]    Ibid.

   [10]  Ibid.

   [11]  Department File Number BCC2021/850786, Doc ID No: 8500481.

   [12]  Ibid.

   [13]  Ibid.

   [14]  Ibid.

   [15]  Ibid.

   [16]  Department File Number BCC2021/850786, Doc ID No: 8500478.

   [17]  Ibid.

2. The applicant submitted the following materials to the Tribunal:

   a)Cancellation notification letter dated 24 May 2021[18] and primary decision record dated 24 May 2021[19]

   [18]  Tribunal Case file 2107004, Doc Id No: 8467156.

   [19]  Tribunal Case file 2107004, Doc Id No: 8467157.

   b)Application for fee reduction due to severe financial hardship dated 1 July 2021[20]:

   c)Email from the applicant’s representative requesting the Tribunal not to list a hearing until after the Court proceedings related to the matter have been finalised, or at least not until after late October 2021[21]

   d)Submissions from the applicant’s representative in support of the review application, dated 11 November 2021[22]

   e)Copies of information regarding the charges from SA Police dated 29 March 2021, accompanied by a copy of an unsigned document titled Written Plea Admitting Charge[23]

   f)A copy of the Bail Agreement to release the applicant on bail, dated 30 March 2021[24]

   g)Copy of NOICC addressed to the applicant, dated 3 May 2021[25]

   h)Magistrates’ Court of South Australia record of outcome, dated 27 October 2021[26]

   i)Applicant’s Temporary Skill Shortage (subclass 482) visa grant notice, dated 9 May 2019[27]

   j)Email correspondence from Dadds Jandy Lawyers to the applicant’s representative, informing him that the applicant’s appeal against the Board’s decision to suspend his registration has been listed for further hearing on 1 December 2021, dated 10 November 2021[28]

   k)Offer of employment letter addressed to the applicant for the role of General Practitioner, dated 1 November 2021[29].

   [20]  Tribunal Case file 2107004, Doc Id No: 8563787.

   [21]  Tribunal Case file 2107004, Doc Id No: 8794918.

   [22]  Tribunal Case file 2107004, Doc Id No: 9080481.

   [23]  Tribunal Case file 2107004, Doc Id No: 9080482.

   [24] Ibid.

   [25] Ibid.

   [26] Ibid.

   [27] Ibid.

   [28] Ibid.

   [29] Ibid.

Does the ground for cancellation exist?

s.116(1)(e) - risk to Australian community or individual

1. 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.[30]

   [30] Gong v MIBP [2016] FCCA 561, at [41]

2. The expression ‘good order of the Australian community’ is not defined in the Act. The Federal Court in Tien v MIMA (1998) 89 FCR 80,[31] held in relation to an earlier version of s.116(1)(e), that the term ‘good order of the Australian community’ 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.

   [31] Tien v MIMA (1998) 89 FCR 80 at [94]

3. On 26 March 2021, the Department received information from the South Australia (SA) Police indicating that the applicant had been charged with the alleged offences.[32]The applicant’s employment was terminated on 1 April 2021[33].

   [32] Department File Number BCC2021/850786, Doc ID No: 8500488.

   [33] Department File Number BCC2021/850786, Doc ID No: 8500466.

4. On 3 May 2021 the Department emailed the NOICC[34] to the applicant and he provided his response to the NOICC on 17 May 2021. On 24 May 2021 the Department cancelled the applicant’s visa pursuant to section 116(1)(e)(ii) of the Act.[35]

   [34] NOICC dated 3 May 2021, Department File Number BCC2021/850786, Doc ID No: 85000473 

   [35]  Primary decision record dated 24 May 2021, Department File Number BCC2021/850786, Doc ID No: 8500485.

5. On 27 October 2021 the court proceeding against the applicant were discontinued.[36] The applicant’s visa was cancelled on the basis that he had been charged with the alleged offences. As the charges have been discontinued and bail has been revoked, the basis for the cancellation as detailed in the NOICC no longer exists. There is no evidence that the applicant has been charged or convicted of any other offence.

   [36]  Magistrates Court of South Australia record of Outcome dated 27 october 2021.

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

7. Considering the circumstances, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Jason Pennell

Senior Member