Skinner (Migration)

[2018] AATA 4005

Skinner (Migration) [2018] AATA 4005 (24 August 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jack Roy Alan Skinner

CASE NUMBER:  1709713

HOME AFFAIRS REFERENCE(S):           BCC2016/3775728

MEMBER:Christine Kannis

DATE:24 August 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 24 August 2018 at 7:38am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – risk to Australian community – allegations of offence – seriousness of offence – character references – compliance with bail conditions – no criminal history in Australia – studies in Australia – pending criminal trial – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA, 375A

CASES
Gong v MIBP [2016] FCCA 561

MZAJA v Minister for Immigration [2017] FCCA 44

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(e)(i) of the Migration Act 1958 (the Act).

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

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. On 16 July 2018 the Tribunal sent the applicant an Invitation to Attend a Hearing letter which advised that a hearing had been listed for 31 July 2018 at 9.00 am. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

5. On 30 July 2018 the applicant provided a Response to the hearing invitation indicating that he would be attending the hearing.

6. The applicant failed to appear at the hearing on 31 July 2018 at 9.00 am. The Tribunal Registry contacted the applicant by phone at 9.40 am and he said he understood the hearing was scheduled for 31 July 2018. The Tribunal Registry confirmed the date and he requested the hearing be conducted by telephone.

7. The applicant appeared before the Tribunal by telephone on 31 July 2018.  

8. At the commencement of the hearing the Tribunal informed the applicant that folios 2 to 8, 10 to 19, 27, 33 to 35, 41 to 43, 48 to 51 and 58 in the Department file BCC2016/3775728 were subject to a s.375A certificate made by the Department which certified their disclosure to be contrary to the public interest. The Tribunal informed the applicant that the effect of such a certification was that the Tribunal was prohibited from disclosing the document and/or information in it to him.

9. In this case the reason why disclosure would be contrary to the public interest was stated to be that the folios contained information in relation to Departmental procedures not usually disclosed to the general public and that they contained names and contact information of officers of the Department. The Tribunal was satisfied that the harm faced by the Department by revealing its investigatory techniques outweighed the administration of justice being served by their release. The Tribunal decided the requirements for validity were met and the s.375A certificate was valid.

10. The Tribunal decided the information in folios 2 to 8, 10 to 19, 27, 34 to 35, 41 to 43, 48 to 51 and 58 was not relevant to the review because it related to Departmental procedures and not the issue before the Tribunal. The Tribunal decided the information in folio 33 was relevant to the review and informed the applicant that this information would be disclosed to him in general terms pursuant to s.359AA of the Act.

11. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. A visa may be cancelled under s.116(1)(e)(i) 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. 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] (Gong).

14. There is no definition of ‘risk’ in the Act or Regulations and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001).  The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong).

15. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

16. The Tribunal informed the applicant of the privilege against self-incrimination, particularly given that at the time of the hearing the criminal charges against him were still pending before the Courts.

17. The applicant told the Tribunal that the criminal charges were listed for trial in the near future and he requested a decision with respect to his application for review be postponed until the outcome of the criminal charges was known. He said he has pleaded not guilty to the charges. The Tribunal explained that it was not its role to determine his innocence or guilt but rather to determine if the ground for cancellation exists and if so, to exercise its discretion and decide whether or not to cancel the visa.

18. On 14 March 2017 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the ground that his presence in Australia 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. The particulars of the ground for cancellation and the information indicating the ground for cancellation appeared to exist were stated to be that the Western Australian Police had provided the Department with information that the applicant had been charged with Aggravated Sexual Penetration Without Consent x 23 and Aggravated Indecent Assault x 2.

19. On 28 March 2017 the applicant’s representative responded to the NOICC and provided the following information:

    ·The alleged victim of the charges was the applicant’s former girlfriend (the complainant). The allegations were that he sexually penetrated her over a three month period from September 2015 to December 2015 while she was asleep or unconscious. The allegations were that she located the images of penetration on an external hard drive allegedly belonging to the applicant.

    ·The aggravating factor was that the complainant and the applicant were in a de facto relationship at the time of the alleged offending.

    ·The prosecution evidence showed the complainant stole $6,000 from the applicant’s bank account after taking the hard drive.

    ·The prosecution must prove beyond reasonable doubt that it was the applicant and the complainant in the seized images as well as a lack of consent to the sexual penetration.

    ·There was no independent proof that the complainant was ever drugged by the applicant.

    ·The hard drive also contained footage of consensual sexual activity between the complainant and the applicant in which they were both clearly identifiable.

    ·The applicant denied the charges and is entitled to a presumption of innocence.

    ·The applicant was granted bail in September 2016 with a condition not to contact the complainant and he had not done so.

    ·The applicant did not have a criminal record in Australia or in the United Kingdom.

    ·The applicant had co-operated with Police and had not attempted to leave the jurisdiction. He surrendered his passport after Police did not take it from him despite it being a condition of his bail.

    ·The applicant had been working as a carpenter at Doorstyle since June 2016. The owners of the business had provided an email in support of the applicant.

20. The email from the applicant’s employers [and] a letter of support from a work colleague and friend ([Mr A]) were provided with the NOICC. His employers had known the applicant for 12 months at the time of providing the email and said they were aware of his legal situation. They said they did not feel he was a risk and that he had always shown customers, both male and female, the most utmost respect. They also said he is the type of employee they had been looking for and he would be hard to replace.

21. The letter from [Mr A] did not refer to having knowledge of that the applicant had been charged with the offences. At the time of writing the letter [Mr A] had known the applicant since 2015 and the letter was a character reference and described the applicant as caring and a highly productive member of society.

22. The applicant told the Tribunal that the reason for cancellation of his visa was based on a dispute between his guilt and innocence and he believed he would be vindicated at trial. He said after being charged with the offences he had remained in Australia and had voluntarily surrendered his passport.

23. The Tribunal noted that folio 33 of the Departmental file contained information that was relevant to the review in that it provided details of the bail conditions imposed on the applicant. This information was subject to the s.375A certificate however the Tribunal was also mindful of its obligations under s.359AA of the Act to put information to the applicant for his comment or his response if the information could be the reason or part of the reason for affirming the decision under review.

24. In Burton v MIMIA [2005] FCA 1455, Wilcox J held that a valid s.375A certificate does not override the obligation to provide particulars of information under s.359A(1). In doing so the Tribunal is not required to disclose specific documents that it may have in its possession; rather the obligation is to disclose only enough of the substance of the claim that may be the reason or part of the reason for affirming the decision so that the applicant can seek to answer the claim.

25. Complying with the obligations under s. 359AA of the Act, and complying also with the restriction imposed on the Tribunal by s.375A of the Act, the Tribunal put it to the applicant that he had not voluntarily surrendered his passport because one of the bail conditions imposed was that he surrender his passport. The other bail conditions were protective bail conditions with respect to the complainant.

26. The applicant told the Tribunal that he was not aware of the bail condition requiring him to surrender his passport until a Court appearance during which he voluntarily surrendered it to the Police on the advice of his lawyer. Regarding the protective bail conditions the applicant said he has complied with the conditions which were imposed nearly two years ago.

27. The Tribunal asked the applicant about the circumstances giving rise to the charges. Apart from saying that the complainant was his former partner, he said he was not at liberty to discuss the circumstances and strongly believed he would be acquitted of all charges. The Tribunal asked the applicant whether he wished to comment on the complainant’s possible reasons for making the complaints but he declined to do so.

28. Despite requesting information from the Department about the material facts and details of the alleged offending, the Tribunal was not provided with any information except the nature and number of charges against the applicant. The Tribunal noted the seriousness of the charges which are alleged to have been committed over a three month period. The applicant agreed that the alleged offending is serious but maintained his belief that he will be acquitted of the charges.

29. The applicant told the Tribunal that he has resided in Australia for five years and apart from the current charges he has never been involved in any serious offending. He said he was studying for a Diploma in Carpentry at the time the charges were laid. He subsequently fell into financial hardship and stopped studying in July 2017. He has continued working since ceasing study.

30. The applicant said he is currently in a relationship and he and his partner have been together for one and half years. They cohabit and she is aware of the charges against him.

31. The applicant referred the Tribunal to the references previously provided from [the applicant’s employer] and [Mr A]. The Tribunal notes that only one of the references mentions knowledge of the applicant’s legal circumstances and that the references are both more than 12 months old.

32. The applicant has been released on bail. While the Court in granting bail is not considering the same issues as set out in s.116(1)(e)(i), matters generally considered in deciding whether to grant bail include the protection of the victim and the protection of the community from further offending. The Court in this case has been satisfied that, after considering those matters, bail should be granted. This is a relevant matter to be taken into account, although not determinative of the issues before the Tribunal.

33. The Tribunal acknowledges that the applicant has maintained his innocence. The Tribunal also acknowledges that the applicant has no criminal history in Australia and that he has complied with the conditions of his bail including the protective conditions.

34. The Tribunal finds that the applicant has been charged with the criminal offences of Aggravated Sexual Penetration Without Consent x 23 and Aggravated Indecent Assault x 2.

35. As set out above current case law suggests that the threshold for engaging s.116(e)(i) of the Act is a low threshold. The laying of charges, without the determination of guilt, may be sufficient to ground an assessment of ‘risk’ and risk can arise on the possibility that some event occurred in the past. Therefore, although the applicant maintains his innocence, the existence of the charges is relevant to the Tribunal’s consideration as to whether the applicant may or might pose a risk. The charges relates to offences that are of a serious nature. The Tribunal places weight on the nature and number of the charges as an indicator that the applicant may or might be a risk to the safety or good order of the Australian community or a segment of the Australian community.

36. 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

37. 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’.

38. The applicant was studying a Diploma of Carpentry at the time he was charged with the offences. He said that due to his legal matters he fell into financial hardship and ceased studying. He told the Tribunal he wants to complete the qualification and work as a professional in the industry. He said he was not sure of the credits he could claim if he resumes his study in the United Kingdom rather than Australia.

39. The Tribunal accepts that the applicant has been in Australia on a visa in order to study and that he has a future plan to continue studying. The Tribunal gives this some weight in favour of the applicant however notes that the applicant’s evidence was that he could continue his study in the United Kingdom.

40. The Tribunal considered the circumstances in which the ground of cancellation arose. The Tribunal asked the applicant about the circumstances giving rise to the charges however he provided minimal information and said he was not at liberty to discuss the circumstances.  The Tribunal noted that the applicant was invited to attend the hearing in person and after failing to attend at the scheduled hearing time, the Tribunal Registry contacted him at which time he requested that the hearing be conducted by telephone. The Tribunal found the applicant reluctant to participate in the hearing.

41. There is no evidence before the Tribunal to indicate that the applicant has been in breach of other conditions on his visa.

42. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

43. When asked about the potential hardship which might be caused by cancellation of his student visa the applicant did not identify any hardship. He said he is currently on a Bridging visa which allows him to work. The Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

44. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. In this case the Tribunal notes that the applicant will be facing a trial in relation to the charges in the near future and so he will not be removed from Australia pending the trial.

45. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

46. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

47. The applicant is currently in a partner relationship however no information regarding his partner’s identity was provided.

48. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

49. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

   Christine Kannis
   Member