Spencer (Migration)

[2019] AATA 905

Spencer (Migration) [2019] AATA 905 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel David Spencer

CASE NUMBER:  1820704

HOME AFFAIRS REFERENCE(S):           BCC2018/1729438

MEMBER:Kira Raif

DATE:4 February 2019

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 04 February 2019 at 2:16pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – risk to safety of Australian community or individual – a number of criminal charges – no convictions recorded – low scale of offending – paid fines – behaviour restrictions were not imposed by Australian court – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
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 dated 12 July 2018 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 national of the UK born in April 1990. He was last granted a Bridging A visa on 27 November 2017. On 7 June 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant’s presence in Australia is or may be, or would or might be, a risk of the kind specified in s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 12 July 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 4 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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). 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.

5. 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].

6. 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.

7. 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 v Minister for Immigration [2016] FCCA 561 at [41]).

8. 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.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant has been charged with the following offences in April 2018

   a.Assault occasioning bodily harm

   b.Commit public nuisance

   c.Unlawful possession of restricted drugs

10. In September 2016 the applicant appeared in Bundaberg Magistrates Court in relation to a charge of Assault occasioning bodily harm. No conviction was recorded and the applicant was fined $600.

11. The primary decision record also indicates that the applicant has a pending charge for reckless grievous bodily harm dated 19 August 2017.

12. In his written response to the NOICC dated 15 June 2018 the applicant states that the NSW charge no longer exists as he was acquitted of that charge. In relation to the Qld charges, the applicant states that the courts are “taking time” but he is doing his best to resolve the situation. The applicant states that in relation to illicit drugs, he was searched and found in possession of a Viagra tablet and he did not realise it was a restricted drug.

13. In relation to the 2016 charges, the applicant stated that he was attacked and because he was about to go on holiday, he pleaded guilty as it was easier to pay the fine than wait for the trial. No conviction was recorded. The applicant states that he found himself in an unlucky and unavoidable situation and has since learned that it could have been handled better. The applicant states that he is a good and non-violent person.

14. On 25 January 2019 the applicant provided a submission and further evidence to the Tribunal. The applicant presented his current AFP Certificate which refers to three offences without convictions – commit public nuisance (without conviction, fined $50), unlawful possession of restricted drugs (without conviction, fined $750) and assault occasioning bodily harm (without conviction, fined $600). The applicant states in his submission to the Tribunal that he was found not guilty of causing grievous bodily harm. The assault charge was dropped and he was fined $750 for public nuisance and $50 on the drug possession charge with no conviction recorded. The applicant presented evidence of his study and army discharge papers. He presented a number of references which the Tribunal acknowledges.

15. The applicant provided an agreed statement of facts and outlined the circumstances of the incidents. These show that on the occasion in question, the applicant was approached by a group of others, there was a confrontation and the applicant punched another person. The prosecution agreed that the first punch was lawful but not the subsequent punches.

16. In his submission to the Tribunal the applicant claims that the delegate’s decision was unreasonable and inappropriate in circumstances where charges were pending. The Tribunal is mindful, however, that the ground for cancellation arises where the decision-maker forms the view that the applicant’s presence in Australia is or may be a risk. It is not defined by the conviction and it is not necessary to wait for the outcome of the criminal proceedings to form a view that such a risk exists. The Tribunal does not consider that the timing of the primary decision was unreasonable and inappropriate and even if it may have been preferable to wait for the outcome of the criminal proceedings, it was not necessary to do so.

17. In oral evidence the applicant explained the circumstances leading to the charges. With respect to the offence of Committing Public Nuisance, the applicant states that when he was living in Cairns, he was confronted by a group of men and tried to avoid the situation. He was initially charged with causing Actual Bodily Harm but the charges were reduced.

18. With respect to unlawful possession of a restricted drug, the applicant stated that he was given one tablet of Viagra and he did not realise he needed a prescription for it. With respect to the assault charge, the applicant states that he was involved in a scuffle at a bar and was charged. He was given a court date but because he had already booked a holiday overseas, he did not want to go through the trial, so he pleaded guilty as it was easier.

19. The applicant subsequently provided to the Tribunal his police certificate from the UK which shows that the applicant had been cautioned in 2009 for using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence.

20. The applicant told the Tribunal that he has learned from his mistakes. He does not drink as much and he has engaged with the community. He plays sport and works and if he was a risk, his employer would not send him to various jobs. The applicant’s employer gave oral evidence stating that the applicant is an asset to the company, he is well considered by the customers and is a respectful person.

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal is mindful that the charges that formed the basis of the delegate’s findings have been dismissed or the applicant has been found not guilty. The Australian police certificate refers to three offences, one occurring in September 2016 and two in November 2018. All three have been recorded without conviction and the applicant paid fines, suggesting these were at the low scale of offending.

22. The Tribunal has some concerns about the applicant’s general conduct, as evidenced by these multiple incidents. That is, the combination of these offences, and those recorded on the UK police certificate, cause some concern to the Tribunal as these may suggest that the applicant does engage in anti-social or criminal behaviour and the applicant’s own evidence is that these offences occurred when he was drinking. However, the applicant’s evidence is that he is a more responsible drinker now and takes these issues more seriously.

23. The Tribunal places weight on the fact that no convictions were recorded in relation to the applicant’s Australian conduct and that the courts have not imposed any form of behaviour restrictions on the applicant, such as a good behaviour bond, which may suggest that an assessment has been made that the applicant was not a risk to others. In the Tribunal’s view, the conduct that the applicant had engaged in is not of sufficient severity as to give rise to a positive finding that the applicant’s presence in Australia is or may be a risk to others. Should the applicant engage in any other anti-social or criminal conduct, or be charged with, or convicted of, any further offences, the assessment required by s. 116(1)(e) may be different.

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

    Decision

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member