Abdelghany (Migration) - [2023] AATA 2180

Abdelghany (Migration) [2023] AATA 2180 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Ahmed Abdelghany Abdelaziz Abdelghany
REPRESENTATIVE:  Mr Farid Popal
CASE NUMBER:  2204812
HOME AFFAIRS REFERENCE(S):          BCC2021/2116006
MEMBER:David McCulloch
DATE:21 June 2023
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 21 June 2023 at 9:26am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – presence might be a risk to the safety of an individual – criminal charges– applicant was found not guilty and acquitted of all charges – not satisfied that the stated ground for cancellation in s 116(1)(e) exists – power to cancel the applicant’s visa does not arise – applicant is not a member of the wife’s family unit – there is another basis on which the applicant’s visa could be cancelled – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth)
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 March 2022 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 (Cth) (the Act).
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 Fatma Abdelrasoul. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
According to records held on the Department’s Integrated Client Services Environment (ICSE) database and the applicant’s movement details, the applicant is currently an unlawful non-citizen and his relationship status is separated.
The applicant arrived in Australia on 17 December 2019 on a Student visa Subclass 500 as a dependent applicant of his wife’s Student visa. The visa was granted for a stay period until 15 September 2024.
The applicant was represented in relation to the review.
The Tribunal conducted a hearing on 20 June 2023 at 11:30am (AEST). The Tribunal hearing was conducted by video using Microsoft Teams. This was given that the applicant was in Western Australia and the Tribunal Member in New South Wales. The hearing was attended by the applicant’s representative and a barrister, Mr Robert Lindsay.
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…

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 Abdelghany (Migration)

Details

AGLC: Abdelghany (Migration) [2023] AATA 2180
Case: [2023] AATA 2180
Decision Date: 21 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Mr. Abdelghany. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia might be a risk to the safety of an individual, as contemplated by section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had faced criminal charges related to alleged assaults, but was subsequently found not guilty and acquitted of all charges.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out, given the applicant's acquittal on all criminal charges. This required the Tribunal to consider the threshold for satisfaction under this provision, which allows for cancellation if the visa holder's presence is or may be a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal also had to consider the meaning of "good order of the Australian community" in light of relevant case law.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events, the applicant's acquittal on all charges meant that the factual basis for the alleged risk to safety was not established. The Tribunal noted that the applicant was not a member of the wife's family unit, which was a separate consideration. Crucially, the Tribunal found that the stated ground for cancellation under section 116(1)(e) did not exist because the applicant had been acquitted of the charges that formed the basis of the alleged risk.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 500 (Student) visa. The Tribunal also expressed concern regarding the applicant's prolonged detention without a proper decision on his bridging visa status.

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 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). 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? 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]. 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. The Department and Tribunal files contain police and court documents relating to charges laid against the applicant. The applicant was charged with two counts of impeding another person’s normal breathing or blood circulation by applying pressure to the neck, and three counts of common assault in circumstances of aggravation or racial aggravation. The Statement of Material Facts (SOMF) was provided by the applicant to the Tribunal. It is summarised below. Offence 1: common assault in circumstances of aggravation or racial aggravation. At about 6:30am on Wednesday, 9 December 2021 (sic), the applicant was at his home address in Como, WA with the victim. The victim and the applicant were in bed. The victim awoke to the applicant dragging her out of the bed by her hair. The applicant kicked and punched her numerous times to the stomach, head and the rest of her body. He dragged her to the living room. Offence 2: impeded another person’s normal breathing or blood circulation by applying pressure to neck. After dragging the victim to the living room, the applicant used both hands and placed significant pressure around her neck causing her to struggle to breathe. The applicant said, ‘I will kill you and no one will ask me again for the car’, referring to a previous argument about using the car. The victim managed to break free and run away. The applicant threw the victim’s mobile phone at her back causing further pain. The applicant caught the victim, dragged her to the ground by her hair and stepped on her head with his foot. He twisted her right arm behind her back and punched her in the shoulder. The victim became unconscious. The victim attended a medical centre a short time later with the applicant.

Decision

Reasons for decision

The Tribunal is extremely troubled at the failure of a decision having been made by the delegate of the Minister/Department on the Bridging visa, particularly at the point that the applicant was taken into Immigration detention. At the very least, at this point in time a decision on the Bridging visa should have been urgently made thus enabling a review to be sought by the Tribunal if there was a refusal decision. The applicant has thus been in Immigration detention for more than four months without proper processing of an application to make his status lawful which should have been considered urgently at least at the point the applicant was detained.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.David McCullochMember

Ratio Decidendi

Legal Principle Established

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