1906827 (Refugee) - [2019] AATA 6692

1906827 (Refugee) [2019] AATA 6692 (18 December 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906827
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Peter Vlahos
DATE:18 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.
Statement made on 18 December 2019 at 7:31am

CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – risk to the health, safety or good order of the Australian community – grounds for cancellation upon review – applicant charged and remanded for serious offences – charges set aside and struck out – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
CASES
Gong v MIBP [2016] FCCA 561
Krummrey v MIAC (2005) 147 FCR 557
Shi v MARA (2008) 235 CLR 286
SZBEL v MIMIA (2006) 228 CLR 152
Tien v MIMA (1998) 89 FCR 80
Wen Bi Dai v MIAC (2007) 165 FCR 458
Zhang v MIAC [2007] FMCA 1855

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the delegate was satisfied that the applicant is or may be, or would or might be, a risk to the health, safety or good order of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)(i). 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?
s.116(1)(e) - risk to Australian community or individual
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…

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.

Continue reading 1906827 (Refugee)

Details

AGLC: 1906827 (Refugee) [2019] AATA 6692
Case: [2019] AATA 6692
Decision Date: 18 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for review of a decision to cancel the Subclass 785 (Temporary Protection) visa of a Sri Lankan national. The cancellation was based on the applicant posing a risk to the health, safety, or good order of the Australian community.

The primary legal issue before the Tribunal was whether the applicant's circumstances warranted the cancellation of their protection visa, specifically considering the grounds that the applicant might engage in conduct that would place at risk the health, safety or good order of the Australian community.

The Tribunal noted that the applicant had been charged and remanded for serious offences. However, these charges were subsequently set aside and struck out. In light of these developments, the Tribunal concluded that, when considering the circumstances as a whole, the grounds for cancellation were not met. Consequently, the Tribunal set aside the original decision to cancel the visa and substituted a decision not to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.Peter VlahosMember

Ratio Decidendi

Legal Principle Established

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