1801211 (Migration) - [2018] AATA 2784

1801211 (Migration) [2018] AATA 2784 (6 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1801211
MEMBER:Kira Raif
DATE:6 July 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Statement made on 06 July 2018 at 5:19pm

CATCHWORDS
Migration – Cancellation – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional) – Risk to the health safety and good order of the Australian community – Criminal conduct –Issued with an Apprehended Violence order – Parties have no contact – Charges have been dismissed –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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 16 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).
The applicant was granted the Partner visa in Subclass 309 in August 2016. On 22 December 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision
The applicant appeared before the Tribunal on 5 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. 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
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.
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…

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.

Keep reading for free

Create a free CaseChat account to read 1801211 (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 2784
Decision Date: 6 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving the cancellation of a visa holder's Subclass 309 (Spouse (Provisional)) visa. The dispute centred on whether the visa holder's presence in Australia posed a risk to the health, safety, or good order of the Australian community, or to the health or safety of individuals, as contemplated by section 116(1)(e) of the *Migration Act 1958* (Cth).

The primary legal issue before the Tribunal was to determine if the grounds for cancellation under section 116(1)(e) were established. This required the Tribunal to assess the evidence presented, including the fact that the visa holder had been issued with an Apprehended Violence Order, that the parties involved had no contact, and that the associated criminal charges had been dismissed.

The Tribunal reasoned that, after considering all the circumstances, it was not satisfied that the visa holder's presence in Australia constituted a risk to the health, safety, or good order of the Australian community or any individual. Consequently, the Tribunal concluded that the power to cancel the visa under section 116(1)(e) did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal is not 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. 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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.