1835683 (Migration)

[2019] AATA 6443

1835683 (Migration) [2019] AATA 6443 (27 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835683

MEMBER:Justin Owen

DATE:27 September 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 010 (Bridging A) visa.

Statement made on 27 September 2019 at 12:03pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – risk to health, safety or good order – false allegations by ex-wife – acquitted – not a risk – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 189(1)

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 23 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia was a risk to the safety of an individual. The ground for cancellation arose from information before the delegate that the applicant had allegedly engaged in behaviour relating to [an offence], including [another offence]. The delegate noted that as a result of these alleged offences the applicant was arrested and subsequently charged by [State 1] Police [in] 2018 with the charges: [a charge] and [another charge]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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

4. 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?

5. 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].

6. 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.

7. The delegate in his decision record noted ‘Based on the information before me it appears that you may have allegedly engaged in [info deleted]. As a result of this alleged behaviour it appears your presence in Australia may be a risk to the safety of an individual; that is, your alleged victim. If this is the case, your visa may be cancelled under s116(1)(e)(ii) of the Migration Act’ (D1, Folio. 40).

8. The applicant was arrested and charged by [State 1] Police Force [in] 2018. He was subsequently detained at [a location]. 

9. The applicant denied the charges (D1, Folio. 22) and stated the charges emanated from false allegations made by his ex-wife who was allegedly unhappy the applicant had rights to see their biological child.  He alleged his ex-wife had previously made attempts to have him deported.  The applicant entered a Not Guilty plea in Court. 

10. The delegate cancelled the applicant’s visa on 23 November 2018. 

11. On 2 September 2019 the applicant’s representative contacted the Tribunal to inform it that the applicant was found Not Guilty in [a court] of the charges against him which had been considered as grounds for the cancellation of his visa (T1, Folio. 26).

12. On 10 September 2019 the Tribunal obtained from the Department the applicant’s Court appearance record for [2019]. It confirms that the applicant was acquitted of all charges (T1, Folio. 31).

13. The Tribunal also notes Departmental records that state on 2 September 2019 the applicant was released from [another court], detained under s189(1) of the Migration Act and subsequently granted a Bridging Visa E (T1, Folio. 28).     

14. The Tribunal accepts the finding of the District Court: it is not for the Tribunal to evaluate or critique the findings of the Court.  The Tribunal notes the seriousness of the alleged offences but notes he has now been acquitted of these charges.  There is no further information before the Tribunal to suggest that the applicant is a threat 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 on the evidence before it 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 Australian community; or the health or safety of an individual or individuals.

15. 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

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Justin Owen
    Senior Member