Song (Migration)

[2018] AATA 807

Song (Migration) [2018] AATA 807 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wenxiu Song

CASE NUMBER:  1707209

DIBP REFERENCE(S):  BCC2017/220358

MEMBER:Ian Garnham

DATE:16 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

Statement made on 16 March 2018 at 12:53pm

CATCHWORDS
Migration – Cancellation – Visitor (Class FA) visa – Subclass 600 (Visitor) – Withdrawn criminal charges – Medical evidence – Genuine and credible witness

LEGISLATION
Migration Act 1958, s 116

CASE
Gong v Minister for Immigration & Anor [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s subclass 600 (Visitor) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the presence of the visa holder in Australia may be a risk to the safety of a segment of the Australian community (children).

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

4. The applicant appeared before the Tribunal on 20 November 2017 by conference telephone to give evidence and present arguments. The Tribunal also received oral evidence from the son of the visa applicant.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. 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

8. 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).

   Power to cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   ……………………………

   (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i)  the health, safety or good order of the Australian community or a segment of the Australian community;

   ……………………..

9. 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.

   Background

10. The visa holder is now 73 years old and lives in a rural part of China.  His son is a chef who migrated to Australia with his family in 2013.  The visa holder’s wife died in September 2015.  The visa holder’s son organised for his father to come to Australia for a holiday to visit his family.

11. The visa holder arrived in Australia on 14 June 2016 on a visa that ceased to have effect on 14 June 2017.  The visa holder’s son claims that after his father arrived he found an abandoned bike and fixed it up so his father could ride around the neighbourhood.  The visa holder’s son and his wife work at a restaurant approximately 3 kilometres from their home.  The visa holder’s son said that his father would ride to the restaurant and share a lunchtime meal with them around 2-3 times per week.

12. At the hearing the visa holder and his son said that on 2 December 2016 the visa holder rode the bike, leaving at about 10:00am to the restaurant to lunch with his son and daughter in law.  His evidence to the tribunal was that on his return to his son’s place he stopped at a park with a half basketball court about 3 minutes from his son’s home. 

13. There were 3-4 children at the park and at the hearing the visa holder said that he stopped there because he was curious.  He also said that after watching the children for 5-6 minutes they all left the park.  However the children’s version of events is; the visa holder dropped his bicycle and then moved to a tree near the basketball court and put his hand inside his pants and moved it around while watching one of the children, a boy playing basketball.  The visa holder’s evidence to the tribunal was that he was unaware that anything untoward had happened – he did not detect that the children were upset.  The visa holder said he does not speak English and does not know why he was arrested.  He has always maintained his innocence, saying that he could well have adjusted his track pants when he got off the bicycle but he did not do what he is accused of.   

14. One of the children reported the incident to a parent and then a police report was made.  A few days later one of the children and his father recognised the visa holder and followed him to his son’s home.  A police investigation followed. 

15. On 23 December 2016 the visa holder was arrested and charged with wilfully committing an indecent act in the presence of a child.  The visa holder was granted Court bail to appear in the Magistrates Court on 27 January 2017.  

16. The Department (DIBP) began an investigation and on 14 February 2017 a Notice of Intention to Consider Cancellation (NOICC) was served on the visa holder.  I am satisfied that the NOICC was properly made and served.

    Does the ground for cancellation exist?

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

17. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

18. On 6 March 2017 the visa holder responded to the NOICC.  The response[1] comprised a submission, photographs (primarily of the visa holder’s deformed left hand) and a copy of a putative fact similar Federal Circuit Court of Australia judgement.[2]   

    [1] At FF:21-43 (DIBP)

    [2] Gong v Minister for Immigration & Anor [2016] FCCA 561

19. At the time the delegate made their decision, their most recent advice from the Victorian police was that of 9 February 2017.  It says the case was now set down for a contest mention at Melbourne Magistrates Court on 21/04/2017 and the visa holder remained on bail.[3]   

    [3] AT F:17 (DIBP)

20. Section 116(1)(e)(i) creates a very low threshold, with respect to making out of the ground, and for considering what is the realistic risk or likelihood of an event occurring. It merely requires that the risk be that the event might or may occur for the ground to be made out. In cases where children are at risk of being harmed the threshold is further lowered. Based on the evidence before them at that time I consider that the delegate appropriately found that the ground was made out and cancelled the visa.

21. Since the delegate’s decision was made the tribunal has received significant further evidence about the alleged offence of the visa holder.

22. Firstly a submission dated 28 April 2017[4] advises that the charge against the visa holder was withdrawn on 26 April 2017.  The submission also advises that the prosecution withdrew the charge following a presentation and a viewing of the evidence in the case.  This is confirmed by advice from the visa holder’s defence lawyer[5] who presented the evidence.  He states that the charge was withdrawn due to inconsistencies in the evidence of the witnesses and further medical evidence as to the injury of the visa holder’s hand[6].    

    [4] At F:13-16 (AAT)

    [5] At F:58 (AAT)

    [6] At F:9 (AAT)

23. I have also had the benefit of consideration of some of the witness statements and evidentiary material.[7]  In light of this new evidence I consider it is highly unlikely that the visa holder did commit the offence.

    [7] At FF:65-73 (AAT)

24. The visa holder and his son were genuine and credible witnesses.  The witness statements I have seen are inconsistent and the medical evidence indicates that it would be physically difficult for the visa holder to commit the offence as described by the witnesses.  There is no convincing evidence before me that the visa holder acted other than as he has described, in that he stopped to rest and observe the children playing in the park at the time in question.  The visa holder is of an advanced age and a different culture and there is no evidence before me that he has been found guilty or accused of any offence previously.

25. I am swayed by the new evidence to the extent that I do not consider that the presence of the visa holder in Australia would pose any risk (greater than the standing risk that applies to any visitor randomly selected) to the health and safety of Australian children.   

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

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

    DECISION

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

    Ian Garnham
    Member