Tago (Migration)

[2020] AATA 4829

Tago (Migration) [2020] AATA 4829 (18 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sefulutolu Tago

CASE NUMBER:  2005625

HOME AFFAIRS REFERENCE(S):          BCC2019/6474793

MEMBER:Michael Cooke

DATE:18 November 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 444 (Special Category) visa.

Statement made on 18 November 2020 at 2:13pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to safety of Australian community – conviction for affray – guilty plea, good behaviour bond and no conviction recorded – potential hardship to family if visa cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)

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 dated 4 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant 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.

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 18 November 20230 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Elena Tago.

5. The applicant in oral evidence confirmed responses he had made to the delegate in his response to the delegate. His mother outlined the importance of the applicant to the family unit and the hardship they would face if the cancellation were upheld. Potential hardship because of cancellation was also canvassed in the hearing by the Presiding Member.

6. 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

7. 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.

   Does the ground for cancellation exist?

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

8. 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].

9. 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.

10. The Tribunal is aware of additional information provided to it by the applicant concerning his case which happened one year prior to the writing of this decision. His lawyer appeared on his behalf at Southport Magistrates Court (Queensland) on 26 June 2020. The information provided by him from his legal counsel elaborated the professional finalisation of the applicant’s matter. In the letter his lawyer advises that the applicant plead guilty to the offence called ‘affray’. Following submissions made on his behalf he was sentenced by the presiding Magistrate. As a result of the sentencing he was placed on a good behaviour bond for a period of 12 months on a recognisance in the amount of $1,000. No conviction was recorded against him.

11. The Tribunal has had the benefit of additional and current information at the time of writing. In oral evidence the applicant advised that he had not been a person of concern to the authorities since the incident on 30 November 2019. His role in the family is crucial to their well being and maintenance he claims, and his mother agrees.

12. The Tribunal has considered the applicant’s case following the receipt of the additional information. The Tribunal is satisfied from the Magistrate’s decision that the applicant’s presence ‘does not pose 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’.

13. For these reasons, 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

14. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Michael Cooke
    Senior Member