1907418 (Migration)

1907418 (Migration) [2019] AATA 6064 (2 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907418
MEMBER:Susan Trotter
DATE:2 October 2019
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 2 October 2019 at 4:27pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – risk to the safety of an individual – untested sexual assault charges – family protection orders pursued by police – study rights retained under Bridging Visa – emotional hardship to the applicant’s family – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994
CASES
Gong v Minister for Immigration and Anor [2016] FCCA 561

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 21 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a now [age]-year-old citizen of China. He first arrived in Australia in 2015 as the holder of a previous student visa.
On 11 January 2019, the Department forwarded to the applicant a Notice of Intention to Consider Cancellation (NOICC) of the Subclass 573 visa. This proposed cancellation was noted to be pursuant to s.116(1)(e) of the Act on the basis of information received from the [state Police Service] that the applicant had a pending charge in relation to the alleged offence of sexual assault said to have been committed [in] November 2018. The applicant responded to the NOICC.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 28 March 2019.
The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Mandarin and English languages. However, as the applicant had only requested the assistance of an interpreter the day prior to the hearing, the interpreter arranged by the Tribunal was only able to assist for an hour. A further hearing was therefore arranged for 2 September 2019 when the Tribunal was again assisted by an interpreter in the Mandarin and English languages. The Tribunal also received oral evidence from the applicant’s girlfriend, [Ms A], at the 2 September 2019 hearing.
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
Under s.116 of the Act, the Minister may cancel a visa if 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) of the Act. 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) of the Act if 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 are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ including:
(a) The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;
(b) The extent of compliance with visa conditions;
(c)   Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the visa holder and any family members;
(d) Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;
(e) Past and present conduct of the visa holder towards the Department;
(f)    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;
(g) Whether there would be consequential cancellations under s.140;
(h) Whether any international obligations would be breached as a result of the cancellation; and
(i)    Any other relevant matters.
It follows that the issues to be determined by the Tribunal are:
(a) Does the ground for cancellation exist? And, if so,
(b) Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?
CONSIDERATION
Issue 1 - Does the ground for cancellation exist?
Section 116(1)(e) of the Act provides as a ground of cancellation if the presence of 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, a segment of the Australian community or any individual/s.
PAM3 sets out policy guidelines to be taken into account when considering whether the ground set out in s.116(1)(e) is established.
The Tribunal is not bound by policy however would normally have regard to the policy as a relevant factor to be taken into account unless it considers it was inconsistent with legislation.
Risk to the health of the Australian community, a segment of the community or any individual/s
PAM3 sets out that having (active) tuberculosis is the most common reason a visa holder would be a risk to the health of the Australian community. It also sets out that a person who publicly advocates something which is against Australia’s health interests may be a risk to the health of the Australian community.
There is no evidence before the Tribunal that the applicant is or may be, or would or might be, a risk to the health of the Australian community, a segment of that community or any individual/s and the Tribunal finds that he is not.
Risk to the good order of the Australian community, a segment of the community or any individual/s
PAM3 gives examples of where a person’s presence may pose a risk to good order where, for example, a person incites or advocates violence including against a particular social group.
There is no evidence before the Tribunal that the applicant is or may be, or would or might be, a risk to the good order of the Australian community, a segment of that community or any individual/s and the Tribunal finds that he is not.
Risk to the safety of the Australian community, a segment of the community or any individual/s
It is not in dispute that [in] November 2018, the applicant was charged with the offence of sexual assault by the [Police Service] and released on bail. Documents in evidence before the Tribunal show that there was a committal hearing on [a date in] May 2019 in relation to this charge and that the Director of Public Prosecutions has six months from [that date] to present an indictment to the District Court.
The sexual assault charge relates to an incident said to have occurred [in] November 2018, involving the applicant and a fellow student at his then educational institution where he was undertaking a [Course 1] qualification. Briefly, the applicant is alleged to have invited a female fellow student back to a hotel room, attempted to touch her breasts and offered to pay her money to keep the incident a secret.
Written submissions on behalf of the applicant include that although the threshold under s.116(1)(e) may be considered very low, a visa cannot be cancelled without anything to prove the applicant engaged in the activity giving rise to the offence of which he is charged, with a charge amounting to no more than an untested and unproven allegation of criminal conduct. It was further submitted that the applicant has at all times maintained his innocence and will be pleading not guilty should the indictment be presented. Reference was made to Gong v Minister for Immigration and Anor [2016] FCCA 561 (Gong) where it was submitted that Smith J ‘noted. that the Tribunal had committed jurisdictional error by inferring from the fact that the police had charged a visa holder with an offence, that there was a reasonable basis for the charge’. No paragraph reference was given in the written submissions for this statement of Smith J. However, given these submissions it is instructive to consider Smith J’s reasons in more detail. The Tribunal notes that at [26] of Gong, Smith J observes that:
[26]…the applicant’s second ground of concerning sub-s.116(3) was that the Tribunal’s ‘conclusion was unreasonable, in the sense that there was no evidence and intelligible justification for it. He argued that there were two based for the Tribunal’s conclusion, neither of which had any logical basis in the material: first, the Tribunal inferred from the laying of charges that the police had a “reasonable belief” that the applicant had committed the offences; and ….
Smith J then continues on to discuss the submissions by the parties in that matter and examines the relevant statutory provisions in detail before stating as follows:
[41]…Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).
…
[43]The applicant contended that, if sub-s.116(1)(e) were construed so as to be engaged by the laying of charges, the common law right of the presumption of innocence would be abrogated. There was some debate about the precise scope of the common law right in question. However, I do not need to resolve that issue.
[44]In Momcilovic v The Queen (2011) 245 CLR 1, French CJ explained at [43], that the principle of legality is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. Crennan and Kiefel JJ said, at [512]:
The principle of legality at common law would require that a statutory provision affecting the presumption of innocence be construed, so far as the language of the provision allows, to minimise or avoid the displacement of the presumption. …
[45]The difficulty with the applicant’s argument is that, even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of the prosecution’s onus of proof: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20; R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8. There is no requirement in it that there be a determination, one way or another, of the guilt of a visa holder and there is no requirement that the visa holder be compelled to give any evidence.
…
[51]…He also argued that the second last sentence showed that the Tribunal wrongly focussed on the past whereas the statute focusses on the future. I disagree with the submission that this reveals error. What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future. Similarly, where the statute asks whether there “may be a risk”, the possibility that something occurred in the past may have some logical bearing on the answer to that question. …
…
[54]… I accept that the fact that charges have been laid is a reasonable basis on which to infer that the police “consider” that there is a case to answer. Obviously, an active step is required in order to lay charges and such a step must, as a matter of logic, be based on some subjective process. It is possible that the process is completely malign; however, it is also possible that it was simply part of the exercise of the charging officer’s duties. On that basis, it is open to infer that the police considered that there was a case to answer.
[55]However, I do not think that the mere fact that charges have been laid gives rise to any inference that there was a reasonable basis for those charges. That is an objective assessment of the factual basis for the charges and a comparison of that with the integers of the offence. In order for that inference to be drawn, there must be some evidence of the facts upon which the charges were laid and as assessment of those against the elements of the offence.
Smith J therefore did, as submitted, find that ‘that the Tribunal had committed jurisdictional error by inferring from the fact that the police had charged a visa holder with an offence, that there was a reasonable basis for the charge’. However, Smith J clearly drew a distinction between that inference, that is that there was a reasonable basis for the charge, and at [41] the possibility that some event occurred in the past being supported by the fact of the laying of the charges.
The applicant has been charged with a sexual assault offence. The Tribunal accepts that the applicant has pleaded not guilty and also acknowledges that an indictment has not as yet been presented, and may not be. The Tribunal also acknowledges the applicant’s submissions in relation to the presumption of innocence. As found by Smith J in Gong, s.116(1)(e) does not impinge upon the common law rule of a presumption of innocence and there is no requirement in s.116(1)(e) that there be a determination, one way or another, of guilt.
It was further submitted that the Department granted the applicant a Bridging Visa E with study rights allowing the applicant to continue studying, inconsistent with a conclusion that the Department considered the applicant such a risk that warranted removal of his study rights and, further, that the applicant was released on bail and free to live in the community, reflecting the court’s view that the applicant did not pose a risk. The Tribunal accepts that there have been assessments, in other contexts, of the risk that the applicant might pose, including by the Department in not removing the applicant’s study rights, and by the court, in releasing the applicant on bail. The Tribunal acknowledges those matters and has taken them into account as relevant factors for its consideration, but does not consider either determination by others in different contexts as determinative of whether a ground is established or not under s.116(1)(e) of the Act.
Additionally, it was submitted that the applicant had no other previous criminal history nor had been subject to any other charges in Australia or elsewhere.
Notably, s.116(1)(e) provides that a person’s visa may be cancelled not only where the visa holder’s presence in Australia ‘is’ or ‘would be’ a risk to the safety of the Australian community, but also where it ‘may be’ or ‘might be’, thereby suggesting a very low threshold as to a future possibility.
The Tribunal accepts that the sexual assault charge against the applicant is as yet untested and unproved, and further, that there is a presumption of innocence. However, consistent with Smith J in Gong at [41], the Tribunal considers that a ground for cancellation under s.116(1)(e) can arise on the possibility that some event occurred in the past. The possibility of past conduct by the applicant as alleged in relation to the sexual assault charge is in the Tribunal’s view supported by the laying of the charge by the [Police Service] such that the Tribunal concludes that the presence of the applicant in Australia, may be a risk to the health, safety or good order of the Australian community, a segment of the Australian community or any individual/s. In reaching that conclusion, the Tribunal makes no inference or no finding as to whether there was a reasonable basis for that charge, as distinct from the fact the charge has been laid.
It follows that the Tribunal finds that there is a ground for cancelling the applicant’s visa under s.116(1)(e)(i) of the Act. As that ground does not require mandatory cancellation under s.116(3), of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised
For completeness, as regards the written submissions that the applicant had no other previous criminal history nor had been subject to any other charges in Australia or elsewhere, the Tribunal asked the applicant at the first hearing whether he had ever come to the attention of the police in relation to any other matter. The applicant responded that he and his girlfriend had been charged with stealing some [specified] items from [a business] two or three years previously, however stated that no conviction had been recorded and he therefore did not consider that amounted to a previous criminal history[1]. He also told the Tribunal that the court had made an order against him at the end of 2018 in relation to a family violence matter. He told the Tribunal that his girlfriend, [Ms A], comes from the same home town as him and is also a student. He said that they are not married but have lived together continuously for at least three years. His evidence was that leading up to the incident the subject of the family violence order, he was very stressed because of the sexual assault charge and because of assignment and study pressures. He had asked his girlfriend for assistance with his studies and this led to an argument. He did not think his girlfriend was being understanding of the pressure he was under. On the day in question they had a huge fight and were abusing each other verbally. The situation escalated and he obtained a knife out of the kitchen of their unit and waved it around in front of his girlfriend. [Ms A] called the police but by the time the police arrived, the situation had calmed down and [Ms A] did not want to pursue anything. However, the police were concerned for [Ms A’s] safety and they went ahead and pursued the order of their own volition. He did not at any time intend to physically harm his girlfriend. He just wanted her to stop abusing him verbally. Nothing like that had ever happened between them previously. They had not previously had any physical fights as such – just some physical play fights on both sides. They have remained together and they have continued trying and working on their relationship and now have a good relationship.
[1] While ultimately of no relevance to the Tribunal’s consideration, the Tribunal observes that it put to the applicant at hearing, pursuant to the procedure set out in s.359AA of the Act, that a fine of $300 had been imposed in relation this incident. The Tribunal accepts the evidence provided in response that the $300 was not a fine as such, but a rather a recognisance.

[Ms A’s] evidence to the Tribunal included that she had been in an intimate relationship with the applicant for three years and that she has not had any occasion in the past to be fearful for her health or safety due to actions of the applicant. She contacted the police in November 2018 because the applicant had waved a knife around but he did not do anything further. She called the police again to tell them they did not need to come out and that everything had calmed down but they came out anyway. The police pursued the family violence order. She did not want it or need it. She has no fear of the applicant now. In any event, given there is now a protection order for five years, it the applicant does anything harmful, it will put him in a difficult position. Further, since that incident the applicant has grown a lot and he is a changed man now and she does not believe she has anything to fear from him.
When queried, [Ms A] said that prior to November 2018, she and the applicant had had conflicts in their daily lives but it was never anything serious. It was always very minor and it was a bit on both their parts. There was never any injury requiring medical or other attention. She holds no fear against the applicant now.
The Tribunal put to the applicant that given the incident in November 2018 in relation to his girlfriend when the police were called and a Protection Order was subsequently made, the Tribunal might on that basis hold a concern 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 an individual, specifically [Ms A].
The applicant, in a statutory declaration dated 20 September 2019 provided after the second hearing, declared, among other things (unedited):
I feel very shameful and remorseful for what I did to my girlfriend. I never wanted her to fee fearful or scared of me.
…
I never intended to make my girlfriend fearful of me, and I take responsibility for my actions on [the day in] November 2018.
When the domestic violence incident went to court, this was pursued by the police officer and not my girlfriend. At court I consented without admissions to an application for a protection order.
Since this incident occurred I have tried very hard to repair our relationship, and I believe that this incident has not negatively affected us at all. We continue to live together, as we have done for the past 3 years. We have also recently renewed our lease on our apartment and bought a puppy together which we both look after.
I love my girlfriend very much, and we have a very strong relationship…
[Ms A], in a statutory declaration dated 20 September 2019 provided after the second hearing, declared, among other things (unedited):
Before the domestic violence incident [in] November 2018, we have never had a conflict in our relationship, either verbal or physical. We have never hurt each other and have never harmed each other requiring medical treatment.
…
I would like to make it very clear that the domestic violence incident on [the day in] November 2018 was an isolated incident and a one-off event.
…
When the outburst occurred on [that day], I first called the police because I did feel scared. However, when [the applicant] calmed down I was not scared anymore.
When the police came to our apartment, I did not want to continue to press charges, but the police continued to take [the applicant] away.
After this incident our relationship is still very good. We are in a loving relationship and still remain living together. We have even renewed our lease for another year.
I am not scared or fearful of [the applicant], the domestic violence incident was a one-off event which I was not harmed from. I do not think this will happen again. [The applicant] has been working very hard to repair our relationship since this incident occurred.
Notwithstanding the applicant’s and [Ms A’s] evidence that their relationship is in a much better place and that there have no incidents of any concern since November 2018, the Tribunal concludes that there remains a possibility, no matter how remote, taking into account the applicant’s past admitted actions as a possible indicator of future actions, that the applicant’s presence in Australia may or might be a risk to an individual, specifically [Ms A].
The Tribunal has already concluded that a ground for cancellation exists founded upon the possibility of future conduct informed by the laying of charge of sexual assault against the applicant. Additionally, in any event, the Tribunal considers that founded on the applicant’s past conduct towards [Ms A] as canvassed, there is a possibility, however remote, that the applicant’s presence in Australia may be a risk to the safety of [Ms A], that also amounts to a ground for cancellation existing under s.116(1)(e) of the Act.
Issue 2 – Should the discretion to cancel the visa be exercised having regard to all the relevant circumstances?
The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia
The applicant came to Australia in 2015 as the holder of a student visa and has completed a significant portion of [his Course 1] degree. The course was to be completed in November 2019 however his enrolment with the original education provider ([University 1]) was suspended due to the sexual assault charge. However, documents in evidence before the Tribunal show that the applicant has been offered a place at [University 2] to continue with his [Course 1] degree if [University 1] does not allow him back into the course. In the meantime, as is supported by documents in evidence before the Tribunal, the applicant has completed [specified vocational courses].
The visa was granted to the applicant for the purpose of higher education study and despite suspension from his primary course pending finalisation or resolution of the sexual charge against him, the applicant has demonstrated a continuing commitment to study in completing other courses and has now been offered a place with an alternative education provider to continue his higher education studies for a [Course 1] degree.
The Tribunal gives this factor considerable weight in considering whether the discretion to cancel the visa should be exercised.
The extent of compliance with visa conditions
There is no material before the Tribunal to indicate that the applicant has failed to comply with visa conditions. The Tribunal gives some weight to the applicant’s previous compliance with his visa conditions as weighing against cancellation.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members
The Tribunal accepts that a significant degree of financial, psychological and emotional hardship would be caused to the applicant, his family and his girlfriend should the visa be cancelled. This will mean that the applicant will likely have to depart Australia and will have not completed the study he planned to undertake. The Tribunal accepts that the applicant and his family have financially invested in the applicant’s goal of studying in Australia and see study in Australia as important to his goal of returning to China to take over his father’s trading business. The applicant at hearing estimated that his studies and time in Australia have cost his family at least $100,000 to date. The Tribunal also accepts [Ms A’s] evidence, at hearing and in her statutory declaration, that if the applicant’s visa is cancelled she will experience emotional hardship being separated from her long term partner, including in relation to the emotional support he provides to her for her studies, and financial hardship in having to cover the payments for their recently renewed lease, and other expenses, by herself.
The Tribunal considers these matters weigh significantly in the applicant’s favour in its consideration of whether the discretion to cancel the visa should be exercised.
Circumstances in which ground of cancellation arose. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
As already indicated, the Tribunal has relied upon the laying of the charge of sexual assault as founding a ground for cancellation of the visa, rather than making findings of fact in relation to any integers of that charge given that the applicant has not been, and may not be, convicted in relation to that charge. As regards, the family violence incident and the Protection Order obtained against the applicant, the Tribunal does not consider that the circumstances in which the ground of cancellation arose were beyond the applicant’s control. However, the Tribunal accepts that the applicant has shown genuine contrition for the incident and, notably, his girlfriend has maintained her support for the applicant, stating that he has changed and that she holds no fear of him.
Nonetheless the circumstances in which the ground of cancellation arose weigh in favour of exercising the discretion to cancel of the visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled, he would become an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. He would have limited options to apply for any other visas in Australia. He could also be subject to a three-year exclusion period unless he meets the relevant public interest criteria. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program.
The Tribunal places no weight on this factor as being of influence either way as to whether the discretion to cancel the visa should be exercised.
Past and present conduct of the visa holder towards the department such as whether they have been truthful and cooperative in their dealings with the Department
The Tribunal gives some weight in the applicant’s favour that nothing adverse is known about the applicant’s past and present conduct towards the Department and further that he has engaged with the Department by responding to the NOICC and providing information relevant to these proceedings.
Whether there would be consequential cancellations under s.140
There are no dependent visa holders whose visas would be cancelled under s.140 as a consequential result of the cancellation of the applicant’s visa. The Tribunal therefore considers this factor neutral in consideration of the discretion to cancel the visa.
Whether any international obligations would be breached as a result of the cancellation
There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation. The Tribunal therefore considers this factor neutral in consideration of the discretion to cancel the visa.
Any other relevant matters
[Ms A’s] statutory declaration includes reference to her and the applicant having bought a puppy together, for which they jointly care. A receipt for purchase of the puppy has been provided showing that the puppy was purchased [in] April 2019. It is not clear what submission is made in relation to the puppy. However, the Tribunal places no weight on the applicant needing to contribute to the care of the puppy or otherwise as weighing in the applicant’s favour in considering whether the discretion to cancel the visa should be exercised. Notably, the puppy was purchased over a month after cancellation of the visa, not a decision that, in the Tribunal’s view, should be commended, or taken into account in the applicant’s favour, given his visa status in Australia at that time was uncertain.
The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal finds the circumstances giving rise to a ground for cancellation as being of some significance as the possibility of harm to the members of the Australian community and family violence issues and the safety of parties to a relationship is of significant concern. However, the Tribunal accepts that although a charge have been laid in relation to sexual assault, there has been no conviction to date. Further, as regards the family violence matter, the applicant’s girlfriend’s clear evidence was that she considers the applicant has learnt from his mistake and changed and that she genuinely has no fear of him now. The Tribunal also places considerable weight on the applicant’s contrition, his commitment to pursuing higher education studies in Australia, and his commitment to alternative studies pending being able to resume his higher education [Course 1] studies. Further, the Tribunal places considerable weight on the emotional, psychological and financial hardship that would be occasioned to the applicant, his family and his girlfriend if the discretion to cancel the visa was exercised.
The Tribunal also takes into account that if the applicant is ultimately convicted of the sexual assault charge against him, it would be open to the Department to again consider cancellation of his visa.
Considering the circumstances as a whole, the Tribunal concludes that the discretion to cancel the visa should not be exercised.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Susan Trotter
Member

[2019] AATA 6064

2 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Charge

Remedies