1805274 (Migration) - [2019] AATA 1360

1805274 (Migration) [2019] AATA 1360 (26 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1805274
MEMBER:John Cipolla
DATE:26 March 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 500 (Student) visa.

Statement made on 26 March 2019 at 4:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – serious charges involving violence and threats of violence – review adjourned pending criminal proceedings – pleaded guilty to intentionally causing injury and unlawful imprisonment – Community Corrections Order – findings in psychological report – strictly situationally motivated and reflective of the prevailing circumstances – isolated incident and not a pattern of behaviour – compliance with bail conditions – decision under review set aside
LEGISLATION
Migration Act 1958, s 116

CASES
Gong v Minister for Immigration [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR 80
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 22 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate determined that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
CONSIDERATION OF CLAIMS AND EVIDENCE
The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 500 Student visa which is dated 4 January 2018. The identified ground for cancellation of the visa is section 116(1)(e) of the Migration Act namely that the delegate determined that the presence of the holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The NOICC notes that the applicant had been charged with a number of criminal offences. The NOICC notes that [in] December 2016 the applicant was charged with intentionally cause injury; recklessly cause injury; assault by kicking; aggravated burglary-person present; aggravated burglary-offensive weapon; enter building to commit offence-assault; false imprisonment; make threats to kill; theft; handle/receive/retention stolen goods; blackmail; use a carriage service to menace. The NOICC noted that the applicant was scheduled to appear at the [City 1] Magistrates Court [in] July 2018 for a committal hearing in relation to…

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.

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Details

Case: [2019] AATA 1360
Decision Date: 26 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on section 116(1)(e) of the *Migration Act 1958* (Cth), which permits cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health or safety of an individual or individuals. The applicant had been charged with serious criminal offences, including intentionally causing injury and unlawful imprisonment, and the delegate determined that his presence posed a risk to the Australian community.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the *Migration Act* was made out. This required the Tribunal to assess the evidence and determine if the applicant's presence in Australia constituted a risk to the health or safety of any individual or individuals. The Tribunal considered the applicant's response to the Notice of Intention to Consider Cancellation, which included submissions that the circumstances of the alleged offending were confined and potentially justifiable, that the applicant intended to contest the charges, and that his compliance with bail conditions indicated any potential risk was managed.

The Tribunal found that it was not satisfied that the applicant's presence in Australia posed a risk to the health or safety of any individual or the Australian community. While acknowledging the serious charges laid against the applicant, the Tribunal noted that the applicant had pleaded guilty to intentionally causing injury and unlawful imprisonment and had been issued a Community Corrections Order. Crucially, the Tribunal considered findings from a psychological report which described the offending as "strictly situationally motivated and reflective of the prevailing circumstances," an "isolated incident and not a pattern of behaviour." The Tribunal also noted the applicant's compliance with bail conditions. Based on these considerations, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not established.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate determined that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.CONSIDERATION OF CLAIMS AND EVIDENCE The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 500 Student visa which is dated 4 January 2018. The identified ground for cancellation of the visa is section 116(1)(e) of the Migration Act namely that the delegate determined that the presence of the holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The NOICC notes that the applicant had been charged with a number of criminal offences. The NOICC notes that [in] December 2016 the applicant was charged with intentionally cause injury; recklessly cause injury; assault by kicking; aggravated burglary-person present; aggravated burglary-offensive weapon; enter building to commit offence-assault; false imprisonment; make threats to kill; theft; handle/receive/retention stolen goods; blackmail; use a carriage service to menace. The NOICC noted that the applicant was scheduled to appear at the [City 1] Magistrates Court [in] July 2018 for a committal hearing in relation to the pending charges. The delegate determined that based on the evidence that the applicant’s presence in Australia is or may be a risk to the safety of an individual or individuals in the Australian community. The delegate invited the applicant to comment on whether he believed the grounds for cancellation of his visa existed and whether the visa should be cancelled. The applicant provided a very comprehensive response to the NOICC dated 18 January 2018. Part of the response to the NOICC included a letter to the Department from [Law Firm 1] dated 18 January 2018. The letter submits that the applicant does not pose a risk to the Australian community or a segment of the Australian community, or any individual or individuals. The submission notes that:“whilst it is true that Victoria police has concluded that there is a proper basis to bring the charges against [the applicant] , the circumstance of this case, it is submitted, do not form a proper basis for a conclusion that [the applicant] is or may be a risk to the safety of an individual or individuals in the Australian community. In support of the submission, 3 matters will be relied upon: first, the Victoria police brief of evidence in this case discloses an exchange between [the applicant] and the complainant that is confined to its circumstances, and which justifies a view that a lawful excuse is available to him for any conduct found proven in the court. Secondly, [the applicant] is pleading not guilty to the charges, and he has not yet had the opportunity to test the credibility and reliability of the complainant’s evidence. Thirdly, the fact that he has been granted bail by police on conditions that he has observed to the letter indicate that any risk that [the applicant] poses (which is not conceded) are under management.”

Decision

Reasons for decision

The Tribunal is not satisfied that the presence of the applicant 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 community or the health or safety or 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 ariseDECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.John CipollaSenior Member

Ratio Decidendi

Legal Principle Established

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