Shanmugam (Migration)

[2020] AATA 1845

Shanmugam (Migration) [2020] AATA 1845 (9 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mithun Kumar Shanmugam

CASE NUMBER:  1930280

HOME AFFAIRS REFERENCE(S):          BCC 2019/3836344

MEMBER:Nathan Goetz

DATE:9 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 09 March 2020 at 5:17pm

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 – presumption of innocence – low risk of harm to the Australian community – reasonable prospects for conviction – Criminal Justice visa granted – decision under review set aside    

LEGISLATION

Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW), s 61
Migration Act 1958 (Cth), ss 116, 142, 158
Migration Regulations 1994 (Cth)

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 India. He initially arrived in Australia on 29 August 2016 as a holder of a Student (Higher Education Sector) (subclass 500) visa to undertake a registered course of study in Australia. He left Australia on 29 September 2017 and returned on 9 November 2017.  On 29 July 2019 the applicant applied for a Temporary Graduate (Post-Study Work Stream) (subclass 485) visa which allows international students who have recently graduated with a degree from an Australian institution to temporarily live, work and study in Australia. The applicant was granted the bridging visa the subject of this decision on 29 July 2019 to allow him to remain in Australia while his application for the 485 visa was being considered.

3. On 17 September 2019 a delegate issued the applicant with a ‘Notice of Intention to Consider Cancellation’ (NOICC) of the bridging visa under s.116(1)(e)(i) of the Act. This section provides that the Minister may cancel a visa if satisfied that the presence of its 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.

4. The basis of the NOICC was that NSW Police provided information to the Department that the applicant had been charged with:

   ·Three charges of sexual intercourse without consent, contrary to s.61(1) of the Crimes Act 1900 (NSW)

   ·Two counts of sexually touching another person without consent, contrary to s.61kc(a) of the Crimes Act 1900 (NSW)

5. The NOICC detailed that it was alleged that the applicant had engaged in unwanted physical contact with a work colleague and acquaintance. It was alleged that on 7 January 2019 the applicant accompanied his work colleague to her residence after a work Christmas function and they shared the same bed. While sharing the bed, it was alleged that the applicant initiated physical contact of a sexual nature with the colleague, after which the colleague moved away from the applicant. The applicant continued to initiate physical conduct with the work colleague and had sexual intercourse with her twice, despite the applicant being pushed away and the work colleague moving away on both occasions. Following these incidents, the work colleague requested the assistance of a friend who was also staying at her residence and the applicant eventually left the premises of his own accord. This incident was reported to police on 17 January 2019 and the applicant was arrested and charged. The matters are now before the courts.

6. The NOICC noted the impact that sexual assault may have on an individual, including psychological and emotional effects. Based on the information, the delegate considered that the applicant’s continued presence in Australia may pose a risk to the safety of a segment of the Australian community, namely women. Accordingly, the delegate considered that there appeared to be a ground to cancel the applicant’s bridging visa. The applicant was invited to comment on why the ground for cancellation did not exist, or to give reasons why the visa should not be cancelled and to provide any supporting evidence before a decision would be made whether to cancel the visa.

7. The applicant responded by letter dated 21 September 2019 and the delegate indicated in the cancellation decision of 18 October 2019 that the applicant’s response was considered before the delegate decided to cancel the bridging visa. The delegate summarised the applicant’s response as follows:

   ·     The applicant strongly denies the allegations against him and maintains his innocence.

   ·     The applicant does not have a past criminal history.

   ·     During the applicant’s first court appearance, his lawyer stated that the police case was not a strong case with the sequence of events as described by the complainant to be questionable due to the obvious level of intoxication.

   ·     According to the applicant’s lawyer, the magistrate agreed with the defence submission noting that the prosecution case appeared erratic even at such an early stage, and noted that the reporting officer had informed him that the complainant had a very unusual way of describing the sequence of events.

   · The applicant submitted that the allegations would have been proven (clearly an error by the delegate, as the response reads ‘proven wrong’) a while ago, but it has continued to full proceedings due to changes in the Criminal Procedure Act 1986 (NSW).

   ·     The applicant claims that the complainant is an unreliable witness with an extensive criminal record. He had to change lawyers due to her past criminal activities and conflict of interest. His lawyer has subpoenaed her records to find her history of making false allegations.

   ·     The applicant has co-operated with police, complied with strict bail conditions imposed by the court and has volunteered with all court proceedings without a lawyer. He believes his innocence will be proven in time.

   ·     The applicant has always had and will respect everyone in particular women and the elderly and he believes in equal rights regardless of gender, race, or religion. He has never verbally or physically hurt women despite experiencing racial discrimination and verbal abuse from some women and men in Australia. He experienced anxiety and social discomfort after these incidents, which led him to suspend his university studies two years ago and extend his student visa last year. However, he did not retaliate nor react during these incidences, which indicate that he does not pose a threat to anyone in the Australian community.

   ·     The applicant is a person of good character and helps others and regularly donates to charities. His employer has attested to his good moral character and he is respected as a humble, decent, mature and kind hearted person by his peers.

8. The delegate also indicated that consideration was given to the supporting documents from Patrick Schmidt, special counsel of Kells Lawyers and Nicholas Di Maggio, the Director of Panorama House concerning the applicant.

9. Having considered all the material before him, the delegate found that the ground for cancellation (namely that the applicant is or may be, or would or might be, a risk to the health, safety and good order of the Australian community or a segment of the Australian community) existed. The delegate then considered whether to exercise the discretion to cancel the visa. The delegate decided that the reasons for not cancelling the visa were insufficient to outweigh the reasons for cancelling the visa.

10. Consequently, the bridging visa was cancelled on 18 October 2019 and the applicant became an unlawful non-citizen.

11. On 24 October 2019 the applicant applied to the Tribunal for a review of the cancellation decision.

12. There is a statutory duty to invite an applicant to appear at the Tribunal but there are exemptions to that duty. The three exceptions to the statutory duty to invite an applicant to appear before the Tribunal at a hearing are:

    ·if the review can be decided in the applicant’s favour on the basis of the material before the Tribunal;

    ·if the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

    ·if the applicant fails to comply within the prescribed time with a request to provide additional information or to comment on, or respond to, adverse information.

13. The Tribunal has been able to decide the matter in the applicant’s favour on the basis of the material available to the Tribunal: s.360(2)(a). Therefore the applicant was not invited to attend the Tribunal for a hearing to discuss his claims and present arguments.

14. 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

15. 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?

16. 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].

17. 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.

18. The Tribunal acknowledges that the applicant is pleading not guilty to the charges against him. A search of the NSW court lists indicates that the applicant faces trial at the Wollongong District Court on 30 March 2020. The Tribunal is conscious of the fact that a person charged with criminal offences is presumed innocent. He is not guilty until the charges are proven against him or her beyond reasonable doubt. Beyond reasonable doubt is acknowledged as the ‘highest test in the land’. The Tribunal also acknowledges that there is no information to suggest that the applicant has a criminal history or that, apart from the conduct which gives rise to the charges, the applicant is, might, or may be a risk to the Australian community or women as a segment of the Australian community.

19. However, considering the charges, the Tribunal struggles to accept that it can do anything other than find that the ground for cancellation is made out. If the allegations against the applicant are true, it would be trite to say that he may or might pose a risk to women in the community. The applicant may be emphatic in his denials, but the complainant may also well be emphatic in her allegations. The only people best able to determine these matters are those charged with determining whether the applicant is guilty or not guilty at his pending trial. It is not for the Tribunal to be able to determine the likely result of the trial, or the strength of the prosecution case. The Tribunal is not equipped to do so, nor should it be, in this Member’s view, invited to do so.

20. The fact of this matter is that the applicant has been charged with serious criminal offending. To that end, the Tribunal has considered the New South Wales Director of Public Prosecutions Guidelines about the decision to prosecute in Guideline 4[1]. Relevantly, this guideline provides the following:

    The prosecution process is usually enlivened by a suspicion, an allegation or a confession. Not all, however, will result in a prosecution.

    "It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration."

    (per Sir Hartley Shawcross QC, UK Attorney General and former Nuremberg trial prosecutor, speaking in the House of Commons on 29 January 1951).

    That statement applies equally to the position in New South Wales. The general public interest is the paramount criterion.”

    The question whether or not the public interest requires that a matter be prosecuted is resolved by determining:

    (1)       whether or not the admissible evidence  available is capable of establishing each element of the offence;

    (2)       whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not

    (3)       whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest.

    [1] >

    Considering that the applicant has been charged and faces trial, the Tribunal is satisfied that there is admissible evidence that is capable of establishing each element of the offence, there are reasonable prospects for conviction, and that the matter should proceed in the public interest.

21. A person who is alleged to have done what the applicant has allegedly done is, may or might be a risk to the Australian community, or more specifically women as a segment of the community. Given that the charges remain pending, the Tribunal cannot be satisfied that there is no risk as to result in the ground for cancellation not being made out.

22. 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

23. 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’.

24. However, in this case, the most persuasive factor concerning the exercise of the discretion comes from the actions of the Department itself subsequent to the cancellation of the bridging visa.

25. The Tribunal found it curious (as indeed would members of the Australian community) that the applicant has remained in the community at liberty following the cancellation of his bridging visa. Remember, the delegate cancelled the bridging visa because of the risk the applicant posed to the community, particularly women. The Tribunal found it curious that the applicant would not already be in immigration detention as an unlawful non-citizen, and assumed that he had not presented himself to the Department following the cancellation, or that the Department had not been able to find him to detain him as an unlawful-non citizen under s.189 of the Act. The Tribunal approached this case on the basis that the applicant is an unlawful non-citizen following the cancellation of his bridging visa.

26. However, that is not the case. A search of the Department records indicates that following the cancellation of the applicant’s bridging visa and after a period of unlawfulness, the Department granted the applicant a visa to allow him to remain at liberty in the community. The Department movement record records that the applicant was granted a criminal justice (ZB-951) visa on 30 October 2019.

27. According to Department Policy, Criminal justice visas (CJVs) are Act-based visas granted for non-citizens whose entry to and/or continued presence in Australia is required for the purposes of the administration of criminal justice.

28. The administration of criminal justice is defined in s142 of the Act as:

    ·             an investigation to find out whether an offence has been committed

    ·             the prosecution of a person for an offence or

    ·             the punishment by way of imprisonment of a person for the commission of an offence.

29. CJVs may be granted to persons who are required to give evidence as witnesses or to persons who are required as defendants in criminal justice proceedings.

30. A prerequisite to any consideration to grant a CJV is the issue of a valid criminal justice certificate (CJC) or criminal justice stay warrant (CJSW). These documents act to verify that a particular person is required to enter and/or remain in Australia for criminal justice purposes.

31. CJCs are not visas and the issue of a certificate does not automatically result in the grant of a criminal justice visa. The issue of an appropriate type of CJC is simply a pre-requisite to any consideration to grant a corresponding type of CJV. CJCs issued in relation to an unlawful non-citizen or in immigration clearance stays the removal or deportation of that person from Australia.

32. Section 158 of the Act provides that the Minister is to have regard to the safety of individuals and people generally before deciding whether it is appropriate for the criminal justice visa to be granted. The Tribunal has considered a ‘Case Note’ recorded by the Department on 30 November 2019 which reads as follows:

    “Mr SHANMUGAM is charged with three counts of sexual intercourse without consent, contrary to section 61l of the Crimes Act 1900. The maximum penalty for this offence is 14 years imprisonment with a seven year non-parole period. He is also charged with two counts of sexually touching another person without consent, contrary to section 61KC of the Crimes Act 1900. The maximum penalty for this offence is five years imprisonment. I consider these offences to fit in Category 2 of the Character Case Allocation matrix.

    The NSW DPP believes that Mr SHANMUGAM does not represent a danger to individuals and people in general, and that he has been cooperative in all his interactions with the police. They have also advised that Mr SHANMUGAM has never evaded criminal justice processes and has had no criminal convictions. I give this significant weight.

    Mr SHANMUGAM’s Bridging Visa A was cancelled on 18 October 2019 under s116 (1) (e) (i) of the Act as he was considered to be a risk to the community. I note that Mr SHANMUGAM was granted bail on 18 January 2019, NSW DPP have advised that he has not breached his bail conditions. I give this moderate weight.

    Mr SHANMUGAM has not had a CPAT or other departmental assessment completed. Departmental records indicate that Mr SHANMUGAM has been compliant with his immigration matters whilst studying on a Student Visa. I give this little weight.

    Having considered all of the above, I find that Mr SHANMUGAM is required to remain in Australia for the purposes of the administration of criminal justice. As such, he meets the requirements for the grant of a Criminal Justice Stay Visa and I grant him that visa.”

1. In the Tribunal’s view, it is ludicrous for the Department to cancel the applicant’s bridging visa on the basis of the risk he poses to the Australian community, and instead of detaining the applicant as an unlawful non-citizen, issuing a criminal justice stay certificate to ensure that he is not removed from Australia (pending the resolution of his criminal matters), the Department decided to take a step further and grant the applicant the criminal justice visa and allow him to remain in the community at liberty, which avoided the applicant being placed into immigration detention as an unlawful non-citizen. The community would rightly be confused about the actions of the Department. If the applicant was such a risk to warrant the cancellation of his bridging visa and remove him from the community, the Department would not have subsequently granted him a criminal justice visa to allow him to remain at liberty.

2. The Tribunal has also considered whether the criminal justice visa was granted while the applicant was in criminal custody as a means to explain why the visa was granted. In circumstances such as that, the Tribunal could see how the Department could come to issue a criminal justice visa when an applicant would not be at large in the community, instead being kept in criminal custody. However, there is no evidence that the applicant was in criminal custody at the time that the criminal justice visa was granted. The evidence before the Tribunal is that the applicant was an unlawful non-citizen in the community from the cancellation of his bridging visa and then remained in the community as a lawful non-citizen following the grant of the criminal justice visa. The community should rightly be outraged that the Department has allowed the applicant to remain at liberty in the community through the grant of the criminal justice visa.

3. When it comes to the Tribunal’s task to consider whether the exercise the discretion to cancel the bridging visa in favour or against the applicant, the Tribunal cannot overlook the subsequent actions of the Department. In the Tribunal’s view, it would be unreasonable to uphold the cancellation of the bridging visa given the subsequent actions of the Department. It brings the Tribunal no joy to do so, but to do anything other than set aside the cancellation would be unreasonable in all the circumstances.

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

   DECISION

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