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

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).
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
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.
On 30 July 2018 the applicant provided a Response to the hearing invitation indicating that he would be attending the hearing.
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.
The applicant appeared before the Tribunal by telephone on 31 July 2018.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Skinner (Migration)

Details

AGLC: Skinner (Migration) [2018] AATA 4005
Case: [2018] AATA 4005
Decision Date: 24 August 2018

CaseChat Overview and Summary

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 572 Vocational Education and Training Sector visa. The cancellation was based on the Minister being satisfied that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth). The applicant was facing pending criminal charges in Australia at the time of the review.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) was made out, and if so, whether to exercise its discretion to cancel the visa. In assessing the risk, the Tribunal considered that the power to cancel a visa under this section does not require a certain or direct foundation, but can arise from the possibility that an event occurred in the past, such as the laying of criminal charges. The Tribunal also had to consider all relevant circumstances in exercising its discretion, including government policy and matters raised by the applicant.

The Tribunal reasoned that the laying of criminal charges, even if unproven, could support a finding of risk to the community, and that it was not the Tribunal's role to determine guilt or innocence. While acknowledging the applicant's desire to complete his studies and his lack of prior criminal history in Australia, the Tribunal found the applicant reluctant to discuss the circumstances leading to the charges. Despite noting that the applicant was not in breach of other visa conditions and had not been untruthful or unco-operative with the Department, the Tribunal concluded that, on balance, the risk to the community warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? 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). 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). 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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