2100622 (Migration)

[2022] AATA 1690

2100622 (Migration) [2022] AATA 1690 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100622

MEMBER:David McCulloch

DATE:20 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 Student visa.

Statement made on 20 April 2022 at 2:52pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to safety of individual – criminal charges – found not guilty – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)

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 20 January 2021 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).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia may pose a risk to a segment of the Australian community, that his presence might be a risk to the safety of an individual, namely [Ms A]. 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.  A hearing was not necessary to determine this.

   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 Department file contains police documents relating to one charge of touch another person without consent and one charge of sexual intercourse without consent that were laid against the applicant relating to events that occurred [in] February 2020.

8. On [Date 1] April 2022 the District Court of New South Wales provided information in writing to the Tribunal indicating that on [Date 2] April 2022 the applicant had been found not guilty of these charges.

9. It is the factual allegations leading to the charges but caused the delegate to consider that the ground of cancellation was made out. As the applicant has been found not guilty of the charges, the relevant factual allegations are not made out. In those circumstances there is no basis to conclude 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 or a segment of the Australian community; or the health or safety of an individual or individuals

10. 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

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 Student visa.

    David McCulloch
    Member