Sharma (Migration)

[2020] AATA 1886

Sharma (Migration) [2020] AATA 1886 (10 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Rahul Sharma

CASE NUMBER:  2000163

HOME AFFAIRS REFERENCE(S):          BCC2019/6452253

MEMBER:  Nathan Goetz

DATE:  10 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 020 (Bridging B) visa.

Statement made on 10 March 2020 at 5:54pm

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – risk to the health and safety of an individual – applicant charged with assault and other offenses – admissible evidence capable of establishing the offence – reasonable prospects for conviction – subsequent grant of a Bridging E visa – decision under review set aside           

LEGISLATION

Crimes Act 1900 (NSW), ss 59, 61, 86
Crimes (Domestic Violence and Personal Violence) Act 2007 (NSW), s 13
Criminal Code Act 1995 (Cth), s 474.17
Migration Act 1958 (Cth), ss 116, 360
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 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of India. He was granted the bridging visa on 16 April 2018 to facilitate his travel to Australia while his permanent partner (subclass 801) visa application was being assessed by the Department.

3. On 4 December 2019 the delegate sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) of the bridging 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 and safety of an individual or individuals: s.116(1)(e)(ii).

4. The delegate had received information that the applicant had been charged with the following offences:

   · One charge of aggravated sexual assault on 8 September 2019 contrary to s.61J(1) of the Crimes Act 1900 (NSW)

   · One charge of take/detain person with intent to obtain advantage occasion actual bodily harm between 7 September 2019 and 8 September 2019 contrary to s.86(2)(b) of the Crimes Act 1900 (NSW)

   · One charge of use carriage service to menace/harass/offend between 7 September 2019 and 8 September 2019 contrary to s.474.17(1) of the Criminal Code Act 1995 (Cth).

   ·     One charge of stalk or intimidate intending to cause fear of physical or mental harm between 7 September 2019 and 8 September 2019 contrary to s.13(1) of the Crimes (Domestic Violence and Personal Violence) Act 2007 (NSW)

   · Three charges of common assault domestic violence between 7 September 2019 and 8 September 2019 contrary to s.61 of the Crimes Act 1900 (NSW)

   · One charge of assault occasioning actual bodily harm domestic violence between 7 September 2019 and 8 September 2019 contrary to s.59(1) of Crimes Act 1900 (NSW)

5. The charges related to the applicant’s de facto partner. According to the summary detailed by the delegate, the allegations are as follows:

6. Around 6pm on 7 September 2019 a verbal exchange between the applicant and his de facto partner escalated. The applicant forcefully took the complainant’s mobile phone from her without her permission and verbally threatened the complainant before returning her phone.

7. Later that evening the applicant threatened to share intimate images of the complainant without her consent. The complainant approached the applicant and the applicant pulled the complainant’s hair and slapped her several times across the face causing harm. The applicant then grabbed the complainant by the throat and forcefully pushed the complainant onto the lounge, squeezing her throat before eventually releasing the complainant.

8. The complainant contacted mutual friends to try to calm the applicant down and manage his behaviour. The applicant took the phone off the complainant and told the mutual friends that everything was ok. The applicant kept the complainant’s phone without her permission. The applicant grabbed hold of the complainant and repeatedly slapped her face and hands, causing her injury.

9. The complainant attempted to leave the premises but as she was running from the applicant, he grabbed her and threatened to tie her up. The applicant restrained the complainant by the wrists and refused to let her go for the rest of the evening. The applicant urinated on the complainant on three occasions.

10. At 1.30am on 8 September 2019 the applicant took the complainant to the bedroom, still restraining her by the wrists. Once inside the bedroom, the applicant threatened the complainant and made a number of derogatory comments towards her. The applicant removed the complainant’s clothes and had unprotected sexual intercourse with the complainant against her will. The applicant laughed at the complainant whilst she was crying and attempting to push the applicant off her. The applicant then went to sleep, still restraining the complainant by her wrists. At 6am while the applicant was sleeping, the complainant was able to break free from the applicant’s release.

11. As a result of these allegations, an Apprehended Domestic Violence Order was issued against the applicant on 16 September 2019 which named the applicant’s de facto partner as the aggrieved party. The order imposed a strict ‘no contact condition’ to control the applicant’s behaviour towards the complainant.

12. The delegate found that based on this information, it appeared that the applicant may be a risk to the safety of an individual, namely his de facto partner. Therefore, it appeared that grounds existed to cancel the applicant’s bridging visa under s.116(1)(e)(ii) of the Act. Before making a decision to cancel the bridging visa, the delegate invited the applicant to comment on the information and show why the ground for cancellation did not exist, or to give reasons why the visa should not be cancelled.

13. In the subsequent cancellation decision of 3 January 2020, the delegate noted that the applicant had responded to the NOICC on 16 December 2019. The delegate indicated that he had considered the material submitted by the applicant before deciding to cancel the visa. This material was summarised in the cancellation decision as follows:

    ·Written submissions from the applicant dated 16 December 2019.

    ·Screenshots of messages and missed calls between the applicant and a person the applicant claims is his de facto partner

    ·Two certificates of interview transcripts for the applicant and his de facto partner conducted by NSW police dated 8 September 2019.

    ·A witness statement from the de facto partner dated 8 September 2019.

    ·A witness statement from Ritesh Duggal dated 25 September 2019.

    ·A statement from Detective Senior Constable Jeffrey Alan Castle dated 14 October 2019.

    ·Court Brief Imagery Folio for the matter of Police v Rahul Sharma dated 12 October 2019.

14. The delegate summarised the applicant’s response to the NOICC as follows:

    ·     The applicant is a complainant of domestic violence and was subjected to emotional and physical abuse from his de facto partner since he arrived in Australia on 11 December 2016. The applicant suffers with depression and anxiety, and has suicidal ideations as a result of the ongoing emotional and physical abuse from his de facto partner. The applicant has been drafting and preparing evidence of domestic violence he suffered since April 2019. The incident of 7 September 2019 involved his de facto partner choking and slapping him. They had consensual sexual intercourse initiated by the de factor and the applicant never restrained her or demonstrated violent or threatening behaviour towards her.

    ·     The applicant is pleading not guilty to the allegations against him which he maintains are false and does not want his visa cancelled before a court decision. The applicant states that the police facts are incorrect. The de facto partner feared that the applicant would report her behaviour so she created a story to the police to try and trap him before he could report her.

    ·     The Apprehended Domestic Violence Order is an interim order and should not be used as an indicator of his character or behaviour. He has been granted bail by a court because he is not considered a social threat, he has complied with all his bail conditions and he has no previous criminal history.

15. As noted above, the delegate cancelled the bridging visa in a decision dated 3 January 2020. The delegate found that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

16. The notification letter attached to the cancellation decision advised the applicant that as his visa had been cancelled, it was no longer in effect and that unless he held, or was granted another visa, he was an unlawful non-citizen and may be detained or removed from Australia.

17. On 5 January 2020, the applicant applied to the Tribunal for a review of the decision to cancel his bridging visa.

18. There is a statutory duty to invite an applicant to a Tribunal hearing, but there are exceptions to that duty. The exceptions are as follows:

    ·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.

19. Having considered the material available to the Tribunal, the Tribunal has decided that the review can be decided in the applicant’s favour on the basis of that material. Accordingly, the Tribunal has decided to exercise its power under s.360(2) of the Act and has not invited the applicant to a hearing.

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

21. 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.

    Does the ground for cancellation exist?

22. 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].

23. 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.

24. A search of the NSW Court List informs the Tribunal that charges against the applicant remain ongoing and are currently listed for a committal hearing at the Newcastle Local Court on 11 March 2020. The Tribunal acknowledges that the charges against the applicant are not proven, he intends to plead not guilty, he has no criminal history and that he has been granted bail for these charges. The Tribunal also acknowledges that the Apprehended Domestic Violence Order has been imposed as an interim order on the basis of the charges.

25. However, when it comes to the Tribunal determining whether the applicant is, may, would or might be a risk to his de facto partner in light on the criminal charges, the Tribunal is not in a position to determine the likely course of the criminal charges. The applicant may be acquitted of the charges, or he may be found guilty. The applicant may be emphatic in his denials, but the complainant may be emphatic in her accusations. The Tribunal is not in a position to properly determine the strength of the prosecution case. The only people who are able to make that decision are those charged with determining whether the applicant is guilty or not guilty in his eventual criminal trial which, given the applicant is presently facing a committal hearing, may be some time away.

26. The Tribunal has considered the NSW Director of Public Prosecutions Guidelines concerning the decision to prosecute. Guideline 4[1] provides the following:

    [1] 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.

27. Given that the charges are ongoing, the Tribunal is satisfied that there is admissible evidence capable of establishing each element of the offence, that there are reasonable prospects for conviction, and that it is in the public interest for the matter to proceed. The prosecution would not be ongoing if Guideline 4 was not met.

28. The Tribunal has looked at the charges and allegations made against the applicant and needs to decide, if they are true, whether the applicant is, may, would or might be a risk to his de facto partner.

29. Having read the summary provided by the delegate, which is a fair summary of the police fact sheet, the Tribunal has come to the conclusion that any person who engaged in the conduct alleged against the applicant would pose a risk to the alleged complainant. The allegation involves multiple offending across two days, degrading acts and controlling behaviour. While it is true that the applicant has been granted bail, the Bail Act 2013 (NSW) is concerned with an assessment of whether the applicant is an acceptable risk. The Tribunal is not so constricted in its assessment. In contrast, the Tribunal needs only be satisfied that the applicant ‘may’, ‘would’ or ‘might’ be a risk.

30. Having considered this matter, the Tribunal has come to the conclusion that the ground for cancellation exists. The Tribunal is satisfied that the applicant is, may, would, or might be a risk to his de facto partner to warrant the cancellation of the bridging visa.

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

32. 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’.

33. The Tribunal has considered the material and a submission presented by the applicant, and has also considered the matters that the delegate put in his reasons for cancelling the visa. The Tribunal must of course come to its own conclusions. However, the Tribunal has been ultimately persuaded that the discretion whether to cancel the visa can ultimately be determined based on the applicant’s subsequent migration history as facilitated by the actions of the Department following the cancellation of the bridging visa.

34. After the bridging visa was cancelled on 3 January 2020, the applicant applied to the Tribunal for a review of the decision on 5 January 2020. The Tribunal found it curious that the applicant, whom it assumed was an unlawful non-citizen following the cancellation of the bridging visa, had not been placed into immigration detention. After all, the delegate cancelled the bridging visa on the basis of the risk the applicant posed to his de facto partner and there is a reasonable expectation that an unlawful non-citizen would be placed by the Department into immigration detention. The cancellation of the bridging visa is a clear indication that the Department did not want the applicant to be at liberty in the community on a bridging visa. The Tribunal assumed that the applicant must have failed to attend upon the Department to regularise his migration status, or that the Department had failed to find him and detain him as an unlawful non-citizen. However, this is not the case.

35. A search of the Department records indicates that the reason that the applicant has remained at liberty in the community is because the Department subsequently granted the applicant a Bridging E visa on 6 January 2020, being three days after it cancelled his Bridging B visa. In a case note recorded on 7 January 2020, another delegate of the Minister recorded that the Australian Border Force indicated that the applicant was not a person of interest to them. The delegate also recorded that because the applicant had lodged a review application with the Administrative Appeals Tribunal concerning a decision to cancel his partner visa on 26 November 2019, the applicant was therefore eligible for a bridging visa connected with this review. For the sake of completeness, the partner visa cancellation decision relates to the Tribunal case 1934609.

36. The delegate imposed condition 8564 on the Bridging E visa. This condition requires the applicant to not engage in criminal conduct. A bridging visa cannot be granted unless the decision maker is satisfied that the applicant would comply with any conditions attached to that visa. It is therefore very curious that the applicant finds himself in a situation where one delegate has determined that the applicant is, may, would or might be a risk to his de facto partner as to warrant the visa which allows him to be at liberty in the community being cancelled, and another delegate deciding that that the applicant would not engage in criminal conduct as to warrant the applicant being placed back into the community at liberty on a subsequent bridging visa.

1. Struggling to understand this, the Tribunal thought that perhaps the applicant had been granted the bridging E visa while he was in criminal custody for the criminal charges. That would go in some way to explain why the subsequent bridging visa had been granted as the applicant would have remained in criminal custody and not at liberty in the community. However, there is nothing on the Department file to indicate that he was in criminal custody when the Bridging E visa was granted. Indeed, it is the exact opposite, with that same case note detailing that the applicant had presented himself at the NSW UGF Counter for a face to face interview to regularise his status as an unlawful non-citizen. The applicant was on bail at the time.

2. When deciding whether to exercise the discretion to cancel or not cancel the bridging visa, the Tribunal must act reasonably. To that end, the Tribunal finds itself in an invidious position. The community would be rightly outraged that the Department has subsequently granted the applicant a Bridging E visa in light of the allegations against the applicant. The summary of the offending is the stuff of nightmares. However, the Tribunal cannot ignore the subsequent actions of the Department who have determined that the applicant should remain at liberty in the community, though the Tribunal struggles for the life of itself why they did so. It is pointlessly circular for the Department to cancel a Bridging B visa to remove a person from the community and then the same Department grant that person a Bridging E visa to place them back in the community. In the Tribunal’s view, this applicant should never have been granted a subsequent Bridging E visa, but he has been, and the Tribunal is stuck with that.

3. Given all of those factors, the Tribunal concludes that the reasons for not cancelling the visa outweigh the reasons for cancelling the bridging visa. To cancel the Bridging B visa given the subsequent actions of the Department would be unreasonable in all the circumstances.

4. 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 020 (Bridging B) visa.

   Nathan Goetz
   Member