1819344 (Migration)

[2019] AATA 5633

1819344 (Migration) [2019] AATA 5633 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819344

MEMBER:David McCulloch

DATE:4 December 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 04 December 2019 at 11:04am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – health and safety of community – acquitted – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

CASES

Gong v MIBP [2016] FCCA 561
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

1. This is an application for review of a decision dated 28 June 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).

2. The applicant is a citizen of China born on [date]. The visa that has been cancelled was granted on 31 October 2017 with an expiry date of 15 March 2022.

3. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the presence of the visa holder in Australia is may be, or would or might be, a risk to the health or safety of an individual or individuals.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant was represented in relation to the review by his registered migration agent.

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?

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 decision of the delegate, a copy of which has been provided by the applicant to the Tribunal, indicates as follows. The applicant was arrested and subsequently charged by [State 1] Police on [date] with the following offences:

    ·‘[a criminal offence]’

11. The response to the NOICC on behalf of the applicant indicates that the applicant has pleaded not guilty to the criminal case in question. It is indicated that the applicant has a good prospect of success. The charges may well be withdrawn. There is a presumption of innocence. The victim is well protected as a result of bail conditions and the AVO which the applicant has complied with.

12. It is submitted that the applicant came to Australia purely to study at [a university in State 1]. He has always been a diligent student. He has never previously been found guilty of any crime or breach of conditions. If the applicant were to be deported that would result in him breaching bail conditions and the AVO.

13. Provided to the Tribunal on [date] was a Court Order Notice of the District Court of [State 1] of the same date indicating that the applicant had been found not guilty of the two charges against him and is acquitted.

14. On the basis of the not guilty verdicts and acquittal, the Tribunal does not take any of the factual allegations leading and the charges against the applicant as supporting the position that the applicant is or may be, or would or might be, a risk to the health or safety of an individual or individuals. It is on the basis of the facts leading to the charges and the charges themselves that the delegate determined that the ground of cancellation was made out.

15. Given the not guilty verdicts and the acquittal, the Tribunal is not satisfied that there are facts which support the ground of cancellation being made out.

16. 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

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

    David McCulloch
    Member