Yohannes (Migration) - [2022] AATA 5264

Yohannes (Migration) [2022] AATA 5264 (3 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Yonnes Yohannes
REPRESENTATIVE:  Mr Tanguy Mutumba Mwilambwe (MARN: 1570409)
CASE NUMBER:  2212357
HOME AFFAIRS REFERENCE(S):          BCC2019/3345865
MEMBER:Simone Burford
DATE:3 February 2022
PLACE OF DECISION:  Perth
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 03 February 2023 at 4:21pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Federal Circuit and Family Court remittal – ground for cancellation – risk to safety of Australian community or individual – criminal charges – drug trafficking – firearms offences – risk of reoffending – ongoing drug use – consideration of discretion – compelling reason to remain – family ties in Australia – Australian citizen wife and daughter – best interest of the child – degree of hardship – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
CASES
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC (Div2) 729
Gong v MIBP [2016] FCCA 561
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 September 2019 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 (Cth) (the Act).
Background
Mr Yonnes Yohannes, the review applicant, is a 27-year-old New Zealand citizen. He first arrived in Australia on 21 September 2004 on a Subclass 444 Special Category visa (SCV). He departed Australia on 4 October 2004 and returned on 29 November 2004. He testified that he has not returned to his country of origin or left Australia since then. This is consistent with Departmental movement records.
On 23 September 2019, the Department issued a Notice of Intention to Cancel (NOICC) the applicant’s visa under s 116(1)(e)(i) on the basis that the applicant had been charged with a range of criminal offences in Victoria including trafficking cannabis and cocaine, possessing an unregistered handgun and ammunition, dealing with the proceeds of crime and possessing various illicit drugs, and that, due to his alleged behaviour, his continued presence in Australia is or may be a risk to the safety of the community.
The notice was sent to the applicant in the Marngoneet Correctional Centre. The applicant signed an acknowledgment of receipt of that document on 26 September 2019. According to the delegate’s decision he did not respond to the notice.
On 23 September 2019, the delegate cancelled his visa under s 116(1)(e)(i) on the basis that the applicant had been charged with a range of criminal offences in Victoria including trafficking cannabis and cocaine, possessing an unregistered handgun and ammunition, dealing with the proceeds of crime…

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 Yohannes (Migration)

Details

AGLC: Yohannes (Migration) [2022] AATA 5264
Case: [2022] AATA 5264
Decision Date: 3 February 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Yohannes against the cancellation of his Special Category (Temporary) (Class TY) visa, Subclass 444. The appeal was heard by the Federal Circuit and Family Court of Australia. The primary ground for cancellation was that Mr Yohannes's presence in Australia posed a risk to the safety of the Australian community, stemming from serious criminal charges including drug trafficking and firearms offences.

The court was required to determine whether the ground for cancellation under s 116(1)(e) of the Migration Act 1958 (Cth) was made out, specifically whether Mr Yohannes's presence in Australia was or might be a risk to the health, safety, or good order of the Australian community. The court also had to consider whether, if the ground for cancellation was established, there was a compelling reason to exercise the discretion not to cancel the visa, taking into account all relevant circumstances.

The court reasoned that the power to cancel a visa under s 116(1)(e) can arise from the possibility of past events, not requiring a certain foundation. The phrase "good order of the Australian community" was interpreted to encompass activities that impact public order, disrupt the administration of law, or create public disruption. The court noted that Mr Yohannes faced numerous charges related to drug trafficking and firearms offences. However, the court also considered the applicant's compelling reasons to remain in Australia, including his Australian citizen wife and daughter, and the best interests of the child. The court found that the degree of hardship that would be caused by cancellation was significant.

Ultimately, the court set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal informed the applicant at the next hearing that it considered the certificates were valid, but as the material covered by the certificates had been overtaken by subsequent events and information (discussed below) the material did not add anything to the Tribunal’s determination of the application and it would not be relying on that information in making its decision. The applicant’s representative did not raise any concerns with this approach and made no submissions in favour of exercising the discretion to release the information, where available.CONSIDERATION 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?s 116(1)(e) – risk to Australian community or individual 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.[4][4] Gong v MIBP [2016] FCCA 561, at [41]. 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. The delegate’s decision indicated the applicant was the holder of a Special Category visa granted to him on 29 November 2004. This was consistent with Departmental records and the applicant’s evidence and was not at issue before the Tribunal. According to the delegate’s decision, the applicant was charged with the following offences on 29 May 2019:·Traffick Methylamphetamine·Possess Cocaine·Possess Cannabis·Possible unregistered general category handgun·Deal property suspected proceed of crime·Possible cartridge ammunition without licence / permit·Commit indictable offence whilst on bail·Traffick Cannabis·Traffick Cocaine·Negligently deal with proceeds of crime·Traffick Methylamphetamine·Possess Methylamphetamine (2 charges)·Negligently deal with proceeds of crime·Commit indictable offence whilst on bail.