FU (Migration) [2018] AATA 732 (3 April 2018)

1. 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.
2. A question arises as to when this should be assessed, namely, at the time of the review decision or at the time of cancellation.
3. According to the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31, when considering this question it is important to identify the precise nature of the decision and whether the relevant legislative provision governing the exercise of the power contains a temporal element. The High Court considered the nature of the review having regard to the review power as set out in s.43(1) of the Administrative Appeal Tribunal Act 1975 (Cth) (the AAT Act) and concluded that it was appropriate for the Tribunal to take into account circumstances prevailing at the time of the Tribunal's decision. The relevant provision governing the review of immigration decisions by the Tribunal in this case is s.349(2) of the Migration Act, which is similar to s.43(1) of the AAT Act. As such, the observations made by the High Court apply equally to the review powers under the Migration Act. Moreover, s.116(1)(e) provides that the ground to cancel is established if the decision maker is satisfied the visa holder may be or would be a risk. These words contemplate that circumstances could be altered by intervening events and invites consideration of the factual matters at the time of the Tribunal's decision.[2] The wording of the provision does not contain a temporal element that confines the Tribunal's consideration to the circumstances as they existed at the time of the delegate's decision.
4. Accordingly, the question of whether the ground for cancellation exists under s.116(1)(e) is to be assessed at the time of the Tribunal's decision, having regard to all information available to the Tribunal at that time. The exercise of discretion under s.116(1) must also be assessed on this basis.
5. If satisfied that the ground for cancellation under s.116 is made out, the decision maker has discretion whether to cancel the visa. Neither the Act nor the Migration Regulations 1994 (the Regulations) specify mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s.499 of the factors to be considered. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate.[3] It is also well established that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary.[4] In this case, the Department of Home Affairs (the Department) has issued guidelines about the matters that should to be considered in deciding whether to cancel a visa: refer to the Department's Procedures Advice Manual - PAM3 'General visa cancellation powers' (PAM3).
6. The Departmental guidelines in PAM3 cover such matters as:
   • (1) the purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;
   • (2) the extent of compliance with visa conditions;
   • (3) the degree of hardship that may be caused (financial, psychological, emotional or other hardship);
   • (4) the circumstances in which the ground of cancellation arose;
   • (5) past and present conduct of the visa holder towards the Department;
   • (6) whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;
   • (7) whether there would be consequential cancellations under s.140 of the Act;
   • (8) whether any international obligations would be breached as a result of the cancellation, and
   • (9) any other relevant matters.
7. For reasons that will become apparent, I am not satisfied the ground for cancellation is established. Essentially, this is because the applicant's visa is due to expire on 18 April 2018 and there is little prospect the Australian community, or a segment of the community, will be exposed to any health or safety risks as a result of her engaging in any activity similar to those that led to the criminal charges. As such, it is unnecessary to consider the exercise of discretion or the Department policy in any detail but the policy has been extracted for completeness.

1. The delegate found that the applicant posed a significant risk to the health and safety of the Australian community. In making this finding, the delegate relied on the charges laid by the New South Wales Police and the fact that the applicant was allegedly working in an unregistered capacity as a healthcare practitioner when the patient died.
2. The applicant contends that the cancellation is unfair because she has not been convicted of the offences and she denies the claims. The applicant says she was acting under the instructions of her employer, who was the victim, and the surgeon, who performed the surgery.
3. The question of whether the ground for cancellation is established under s.116(1)(e) when there are unproven criminal charges pending against a visa holder at the time of the cancellation was considered by the Federal Circuit Court of Australia in Gong v Minister for Immigration and Anor [2016] FCCA 561, in particular at [41] to [63].The decision in Gong is instructive. Having regard to that decision and the terms of s.116(1)(e), the following principles are relevant to the facts of this case.
4. Subsection 116(1) speaks of a 'risk' that the presence of a visa holder 'is or may be' or, alternatively, 'would or might be' to the health or safety of the Australian community. The first limb ('is or may be') is addressed to circumstances where the applicant is present in Australia and the second limb ('would or might be') is addressed to the circumstances where the applicant is outside of Australia.[5]
5. 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.[6] The expression 'may' connotes something 'to be possible'.[6]
6. In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant prevailing at that time (refer above, Shi v MARA).
7. Subsection 116(1)(e) was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce the concept of 'may' or 'might' and it is self-evident from the plain English meaning of these words that the threshold to establish the ground for cancellation was lowered as a result of the amendment.[7]
8. 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.[8]
9. Nevertheless the focus of s.116(1)(e) is on risk, not on charges. This is in contrast to s.116(1)(g), which, in combination with reg.2.43(1)(p), provides that the existence of a charge will be sufficient basis to establish a ground for cancellation of certain bridging visas.
10. As noted in MZAJA v Minister for Immigration and Anor [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.
11. When charges are laid by New South Wales Police, it can be inferred the Police had some basis for laying the charges but it cannot be concluded, simply on the basis of the charges, that the basis for the charges are reasonable.[9] Nor can the Tribunal undertake a meaningful assessment of the prospects or strength of the charges in the absence of, for instance, undertaking its own assessment of the evidence or having the benefit of the results of a concluded committal process were the Court finds there is a 'prima facie' case to answer on the basis of the evidence presented.[10] As noted by Smith J in Gong at [57], the New South Wales Police lay charges and the Director of Public Prosecutions (DPP) prosecutes. Accordingly, the Prosecution Guidelines for the DPP do not assist in forming a view on whether there is a reasonable basis for charges that have been laid. The current Prosecution Guidelines make it clear that while it is ultimately for the DPP to decide whether to continue with a prosecution and whether there is sufficient evidence to support a conviction, the laying of charges rests with the Police.[11] The DPP may give advice to the New South Wales Police on the sufficiency of evidence or the appropriateness of charges.[12] However, there is no evidence about whether this happened in this case before the laying of charges.
12. The role of the Tribunal in assessing the question of risk for the purposes of s.116(1)(e) is unenviable where there are unproven pending charges before the Court. This is particularly so when those charges are very serious in nature. The questioning of an applicant, particularly if they are unrepresented, must be approached with considerable caution. Failure to warn an applicant about the privilege against self-incrimination would deprive an applicant of an important common-law privilege, which has been recognised in s.371(3) of the Act.[13] This makes it difficult for the Tribunal to test the strength of the charges or to engage in a meaningful way with any evidence provided or prosecution Facts Sheets. Indeed to take into account evidence contained in a criminal brief or Fact Sheets without giving the applicant the opportunity to respond would breach the rules of procedural fairness. On the other hand, raising contentious issues after giving the applicant the appropriate warning is likely to elicit a less than meaningful response and it would be unreasonable in the circumstances to draw a negative inference from such a response. Relevantly, again as observed by Smith J in Gong at [45], there is no requirement in s.116(1)(e) that there be a 'determination, one way or the other, of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give any evidence'.[14]
13. Under s.116(1)(e) the Tribunal must assess whether there 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 based on all of the evidence available. The existence of charges relating to conduct which would, if established, present such a risk are relevant to this assessment. It would therefore be appropriate to give the existence of such charges weight when assessing the risk. The question is how much weight should be given.
14. Charges that are very serious in nature and go to the core of the health, safety or good order of the Australian community or a segment of the community may carry significant weight when assessing risk for the purposes of the establishing whether the ground for cancellation under s 116(1)(e) exists. As observed by Smith J in Gong at [51] this is consistent with the logic that underlies the 'What if I am wrong test' in refugee law.[15]
15. In brief, the more serious the charges, the more weight that should be given to the existence of those charges, albeit unproven, when assessing whether there may be a risk to the commuity. It is notoriously difficult to assess future risk, even if charges are proven.[16] However, where the consequences of the risk, if ultimately adverse, are likely to be serious, it may be appropriate as an exercise of 'reasonable speculation', to give the charges significant weight. By contrast, if charges are not serious, it may be appropriate to give unproven charges less weight in assessing the risk.
16. Notwithstanding this, evidence of charges will be but one of the matters that should be taken into account in making the assessment of whether there may be a risk to the community. All the available information must be considered, including, for instance, whether the visa holder is on bail. For example, the Bail Act 2013 (NSW) provides that a bail authority must, before making a bail decision, assess any 'bail concerns'.[17] Those concerns are whether an accused person, if released from custody, will fail to appear in any proceedings for the offence, commit a serious offence, endanger the safety of victims, individuals or the community or interfere with witnesses or evidence.[18] This is referred to as an 'unacceptable risk'.[19] The fact that a Court, after considering the available evidence, refuses bail would carry considerable weight for the Tribunal in assessing risk, although there may be a question about whether there is or may be a risk to the Australian community when the visa holder is incarcerated. If a Court or bail authority grants bail but imposes strict conditions, this may also carry considerable weight on the basis that the Court or bail authority has assessed the risk as sufficient to warrant conditions. On the other hand, the fact that bail is granted without condition would not, of itself, support a finding that applicant is not or may not be a risk because the test under the Bail Act is whether there is an unacceptable risk, which is measured in terms of whether the accused will, for instance, commit a serious offence or endanger the safety of victims, individuals or the community, not whether they may do so.
17. The circumstances of the visa holder will also be relevant. For instance, it may be significant if any risk is or will be mitigated or ameliorated by bail conditions, ill health or infirmity or the nature of the visa.
18. In summary, whether a person is or may be a risk to the Australian community or a segment of the community for the purposes of establishing the grounds for cancellation under s.116(1)(e) of the Act will be a question of fact based on all of the information available to the Tribunal at the time of its decision. This information may include the existence of charges, the nature of those charges, whether the visa holder has pleaded guilty to those charges or whether the visa holder has been committed for trial, whether the visa holder has been granted bail and, if so, the basis of any conditions imposed and, finally, the personal circumstances of the applicant and how those circumstances may impact on any risks.
19. In this case, the applicant has not yet pleaded to the charges but she denies them. She has not yet been committed for trial and there is no evidence before the Tribunal about whether a brief of evidence has been provided to the applicant. The charges are serious and the first charge of manslaughter goes to the heart of what would be considered to be a risk to the safety of the Australian community. The second charge is also serious given the applicant was, at the time of the alleged offence, an unregistered nurse. The applicant does not deny administering the anaesthetic but she claims that this was done under instruction from the victim, who was her employer, and a surgeon. The applicant's evidence on this issue could not be tested because the applicant understandably, after being given a warning in respect of self-incrimination, declined to respond in any detail. No criticism of the applicant or any negative inferences from this should be made. It is accepted that the applicant had little choice but to maintain her silence in the circumstances.
20. Even accepting the applicant's claim, the fact that she administered an anaesthetic is a matter of serious concern which is highly relevant to the question of whether the applicant's continued presence in Australia may be a risk to the health, or safety of the Australian community. It is not contested that the applicant is a trained nurse. She spent several years in Australia undertaking a Bachelor of Nursing degree, which she completed. She was not registered to practice yet she administered anaesthetic. This occurred in a beauty clinic not a surgery. The patient died and, given the applicant's training, it is reasonable to infer that she must have known, or at least been reckless or negligent in respect of, the potential risks. There may be mitigating factors or contrary evidence adduced at the applicant's criminal trial but the fact is that the patient died. This should be given significant weight in assessing whether there may be a risk for the purposes of s.116(1)(e) of the Act.
21. The applicant has been granted bail and there is no evidence about whether any conditions have been imposed. This suggests that the applicant is not considered by bail authorities to be an 'unacceptable risk'. However, for the reasons previously outlined, this does not carry significant weight in assessing whether the applicant may be a risk for the purposes of establishing the ground for cancellation.
22. The applicant's visa is due to expire on 18 April 2018 and unless she is granted a criminal justice visa, which she says the DPP has sought, she will need to leave Australia. If the applicant is required to remain to face trial as part of her bail conditions and a criminal justice visa is not granted, she will be detained in immigration detention pending her trial. Ultimately, whether such a visa is granted will be a matter for the Minister under s.159 of the Act. Given the limited nature of this visa, it may be argued that there is no appreciable risk. This is relevant because the Tribunal must assess whether there is or may be a risk at the time of its decision.[20] If the applicant is released into the community on bail, it is unlikely she would undertake or be in the position to undertake any further unregulated medical procedures between the time of this decision and 18 April 2018. While there is nothing in s.116(1)(e) to confine the question of risk to the period of the visa which is the subject of the cancellation, risk must be assessed based on the facts of each case and having regard to the practical limitations of the review.
23. The question is whether I am satisfied the applicant is or may be a risk at this point of time if she is not in immigration detention and she is otherwise in the community. As the case presently stands, the applicant's visa is due to expire in less than two weeks. There is no information available on what the applicant may do and what decisions may be made by the Minister. Ultimately this is not relevant to my deliberations because what happens after 18 April 2018 is outside the scope of this review. Any decision made by the Minister is not reviewable by this Tribunal and any further action taken by the applicant after her visa expired will be subject to consideration and scrutiny under the Migration Act in any event.
24. The applicant and her and her husband complained about the delay in the determination of this review. The delay is a result of increasing workload and resource constraints in this division. The applicants bridging visa application was determined within three weeks and, given some of the issues in that case are similar to those that require determination in this application, it may well have been preferable to hear those matters together in November 2017. However, if this application had been determined at that stage, there would have been different considerations in assessing the question of risk. It is possible the circumstances of the case would have yielded a different conclusion given the risk or potential for risk that may have been heightened over the extended period of approximately five months until the applicant's visa expired.
25. Having regard to the circumstances, it is highly unlikely that the applicant will be a risk to the health and safety of the Australian community segment of the Australian community. There is no evidence the applicant is violent or that she has committed or is charged with a violent offence. Her charges involve the unauthorised and unregulated use of anaesthetic in a particular setting. It is difficult to see how this conduct may possibly arise over the next two weeks. There is no evidence that the applicant is employed or likely to be employed in a cosmetic clinic over the next two weeks. She says she is attempting to deal with her criminal case which is found difficult to do from immigration detention.
26. I am therefore not satisfied that, at this point of time, the applicant is or may be a risk to the health or safety of the Australian community or a segment of the Australian community.

1. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. As the ground for cancellation is not established, the Tribunal has not considered whether the power to cancel the visa should be exercised.

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 (Student) visa.

[1] Fu (Migration) [2017] AATA 2623 at [12](c).

[2] Compare Shi v Migration Agents Registration Authority [2008] HCA 31 at [49] per Kirby J.

[3] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.

[4] Re Drake v Minister for Immigration and Ethnic Affairs (Re Drake No 2) (1979) 2 ALD 634 discussed in Tarrant v Australian Securities and Investments Commission [2013] AATA 926 at [19] to [21] per President D Kerr and Senior Member J L Redfern.

[5] Refer Gong v Minister for Immigration and Anor [2016] FCCA 561 ('Gong') at [39] per Judge Smith.

[6] See generally, Macquarie Dictionary, revised 3rd edition, 2001.

[6] Macquarie Dictionary, revised 3rd edition, 2001.

[7] Refer to the Explanatory Memorandum in respect of the Migration Amendment (Character and General visa Cancellation) Bill 2014 and Gong at [40] where Smith J observed that the reference in the Explanatory Memorandum noting the lowering of the threshold does not of itself assist with the construction of s.116(1)(e) of the Act.

[10] Refer s.64 of the Criminal Procedure Act 1986 (NSW), namely whether or not having regard to all the evidence before the Magistrate, there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence.

[11] Director of Public Prosecutions, Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales, dated 1 June 2007 ('Prosecution Guidelines'). The Prosecution Guidelines are currently being reviewed.

[13] Subsection 371(3) provides that the penalties for refusing to answer a question do not apply if answering the question may tend to incriminate the person. There is a similar provision in s.433(3) of the Act in relation to protection reviews.

[15] This approach was explained by the Full Federal Court (Sackville, North and Kenny JJ) in Minister for Multicultural Affairs v Rajalingam [1999] FCA 719 at [62]: '[d]epending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution.' [Emphasis in original]

[16] Refer Singh (Migration) [2017] AATA 850 at [60] and [61] per Logan J.

[17] Subsection 17(1) of the Bail Act 2013 (NSW).

[18] Subsection 17(2) of the Bail Act 2013 (NSW). There are similar provisions in other States.

[19] Section 19 of the Bail Act 2013 (NSW).

[20] Refer Shi v Migration Agents Registration Authority [2008] HCA 31.