1907418 (Migration) - [2019] AATA 6064

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

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…

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 6064
Decision Date: 2 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The core of the matter involved whether the applicant's presence in Australia posed a risk to the safety of an individual, stemming from untested sexual assault charges.

The Tribunal was required to determine two key issues: firstly, whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, specifically concerning a risk to the safety of an individual; and secondly, if such a ground was established, whether the discretion to cancel the visa should be exercised in light of all relevant circumstances. The policy guidelines in PAM3 were also to be considered in relation to the established ground.

In its reasoning, the Tribunal found no evidence that the applicant posed a risk to the health or good order of the Australian community. Regarding the risk to safety, the Tribunal noted that the applicant had been charged with sexual assault in November 2018, with a committal hearing having taken place. However, the Tribunal accepted submissions that a visa cancellation could not be based solely on an untested allegation of criminal conduct, referencing the principle that inferring guilt or a reasonable basis for a charge merely from the fact of a charge being laid could constitute jurisdictional error. The Tribunal concluded that the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 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 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 TrotterMember

Ratio Decidendi

Legal Principle Established

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?CONSIDERATIONIssue 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 ….