1912512 (Migration) - [2019] AATA 4960

1912512 (Migration) [2019] AATA 4960 (25 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1912512
MEMBER:P. Wood
DATE:25 July 2019
PLACE OF DECISION: Melbourne, Victoria
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 July 2019 at 6:04pm

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 16 May 2019 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).
The delegate cancelled the visa under s.116(1)(e)(ii) of the Act on the basis that the presence of the visa holder is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
By way of background, the applicant is presently in criminal custody as a result of charges against him and involving his wife and former partner, [Ms A].
On 10 July 2019 the Tribunal wrote to the applicant inviting him to participate in a hearing on 22 July 2019 at 3.00pm. On 11 July 2019 the applicant provided a written response to the Tribunal’s invitation to participate in a hearing on 22 July 2019 at 3.00pm. In that written response, the applicant advised that he and his new partner, [Ms B], would participate and provide evidence.
On 18 July 2019 the applicant applied for an adjournment of the hearing scheduled for 22 July 2019 at 3.00pm. The applicant informed the Tribunal that he wished to apply for bail at some point in the future and that he had instructed an experienced solicitor to prepare that application. The applicant asserted that he would be best prepared to participate in the Tribunal hearing if he were on bail.
At that time, it was unclear as to when he would be applying for bail, and the Tribunal was not in a position to determine the likelihood of the bail application being granted. The Tribunal considered that the applicant had also, by his own admission, demonstrated that he was able to instruct legal representatives, if and when he considered necessary, from custody. Further, the applicant’s written request for an adjournment of the hearing, received by the Tribunal by facsimile, confirmed that he had access to ordinary means of communication.
The Tribunal frequently conducts hearings with applicants in both immigration detention and criminal custody by video-link and, in all the circumstances, the Tribunal considered that the applicant would be able to fully participate in a hearing by video-link. With the Tribunal’s statutory objective of providing a mechanism of review that is fair,…

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 4960
Decision Date: 25 July 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 500 (Student) visa. The applicant, who held a Student (Temporary) (Class TU) visa, had criminal charges laid against him, including intentionally causing injury, false imprisonment, and persistent breach of an intervention order. His enrolment in his university course was subsequently cancelled due to non-payment of fees, which constituted a breach of his visa conditions. The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue was whether the applicant's presence in Australia posed, or might pose, a risk to the health or safety of an individual or individuals, as contemplated by section 116(1)(e)(ii) of the Act. This involved assessing the potential risk based on the criminal charges laid against the applicant, irrespective of his guilt or innocence. The Tribunal also had to consider whether, having found a ground for cancellation, the exercise of discretion favoured cancelling the visa, taking into account all relevant circumstances, including the applicant's stated reasons for wishing to remain in Australia and his compliance with visa conditions.

The Tribunal reasoned that the possibility of past events, such as those alleged in the criminal charges, could logically inform whether the applicant might pose a risk in the future. It inferred that the police, in laying charges, considered there to be a case to answer, which supported the assessment of potential risk. The Tribunal found that the grounds for cancellation under section 116(1)(e)(ii) were made out, concluding that the applicant's presence in Australia might be a risk to the health or safety of specific individuals. In considering the exercise of discretion, the Tribunal acknowledged the applicant's desire to remain in Australia to defend the charges and complete his degree, as well as to continue a relationship. However, it found these reasons did not constitute a compelling need to remain in Australia and gave them no weight in favour of retaining the visa. The Tribunal also noted the cancellation of the applicant's enrolment due to non-payment of fees, which breached visa condition 8202, though it accepted this was impacted by the applicant being remanded in custody.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa, finding that the grounds for cancellation were established and that the exercise of discretion favoured cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those include the ground set out in s.116(1)(e)(ii). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. Section 116(1)(e)(ii) of the Act provides that, subject to subsections (2) and (3) (which for present purposes are not relevant), the Minister may cancel a visa if satisfied that the presence of the holder in Australia is or may be, or would or might be, a risk to the health and safety of an individual or individuals. Whether a person ‘may’ or ‘might’ be a risk within the meaning of those terms in s.116(1)(e)(ii) does not require any direct, solid, or certain foundation before the cancellation power can arise. It can arise on the possibility that some event occurred in the past.[3] Where s.116(1)(e)(ii) asks whether there ‘may be a risk’, the possibility that the relevant event occurred in the past may have some logical bearing on whether it might happen in the future, and whether the person may be a risk.[4] It is open to the Tribunal to infer that in laying charges, the police considered there to be a case for the accused to answer. Such an inference informs whether the events alleged to constitute the risk may have occurred, and whether the applicant may now be a risk within the meaning of s.116(1)(e)(ii).[5][3] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [41] per Judge Smith.[4] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [54] per Judge Smith.[5] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [44] per Judge Smith. Where an applicant’s visa is cancelled on criminal charges that are yet to be determined, as in this case, the risk to the relevant people within the meaning in s.116(1)(e)(ii) should not be confused with guilt or innocence. The Tribunal’s task is not to determine guilt or innocence but to assess the risk the applicant presents based on the evidence before it.[6][6] MZAJA v Minister for Immigration & Anor [2017] FCCA 448 at 15 per Judge Riethmuller.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(e)(ii) 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 health or safety of an individual or individuals. The analysis commences with the original charges against the applicant.[7] By letter dated 25 July 2019, the applicant’s solicitors in his criminal matters advised that the prosecution will only be proceeding with the following charges:·intentionally cause injury·false imprisonment·recklessly cause injury·stalking·persistent breach of intervention order[7] Unlawful assault (3 counts), sexual assault, intentionally cause injury (2 counts), recklessly cause injury (2 counts), assault with instrument, false imprisonment, assault with weapon, stalk another person, use a carriage service to harass, persist in contravention of family violence notice or order, contravene family violence safety notice (5 counts), breach conduct condition of bail.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.P. WoodSenior Member

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal finds that the applicant’s presence in Australia may be a risk to [Ms A] and [Ms B’s] health or safety under s.116(1)(e)(ii) of the Act. The grounds for cancelling the applicant’s visa under that section have been made out. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or the Migration Regulations 1994 (the Regulations) that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.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 [In] July 2018 the applicant was granted a Student (Subclasss 500) visa to undertake a Bachelor of [Subject A] at [University 1] which is [based] in Melbourne, Victoria. That visa was valid until 30 August 2023. [In] July 2018 the applicant arrived in Australia as the holder of the Student (Subclass 500) visa. The Tribunal asked the applicant about his travel and stay in Australia, including whether he has a compelling need to remain in Australia. At the hearing, the applicant stated that he wanted to stay in Australia to defend the charges against him, to complete his bachelor degree and to continue his relationship with [Ms B] (the new relationship having commenced in March 2019). The Tribunal accepts that the applicant wishes to remain in Australia to defend the criminal charges against him. If the applicant is true to his expressed intent and he resumes his previous tertiary study, the principal purpose of his travel to and stay in Australia on a student visa will remain intact. The Tribunal accepts that, in part, the applicant wishes to remain in Australia to continue his relationship with [Ms B]. Overall, the Tribunal does not consider these matters individually, or cumulatively, constitute a compelling need to remain in Australia. The Tribunal gives this consideration no weight in favour of exercising the discretion to cancel the visa.The extent of compliance with visa conditions According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant’s enrolment in the Bachelor of [Subject A] undergraduate degree at [University 1] was cancelled on 29 April 2019. This was due to non-payment of fees and constituted a breach of condition 8202 of the Student (Subclasss 500) visa. On 14 May 2019 the applicant was sent an unsatisfactory attendance notice relating to semester one 2019. The Tribunal asked the applicant about the extent of the applicant’s compliance with visa conditions. The applicant told the Tribunal that he held a satisfactory attendance record at [University 1] and that he has never been employed in breach of his visa conditions. He told the Tribunal that he understood that [University 1] only ‘reported him’ for non-attendance reasons after he was remanded in custody. The Tribunal accepts that the applicant’s studies have been impacted by him being remanded in custody. The Tribunal does not agree with the delegate that the applicant’s failure to pay fees in recent times indicates that the applicant has decided not to continue with the course.