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

1. 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).

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 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.

3. 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.

4. 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.

5. The applicant was represented in relation to the review.

6. 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.

7. 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

8. 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?

9. 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].

10. 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.

11. 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.

12. The Statement of Material Facts (SOMF) was provided by the applicant to the Tribunal. It is summarised below.

13. 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.

14. 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.

15. Offence 3: common assault in circumstances of aggravation or racial aggravation. At about 6:30am on Saturday, 18 June 2021, the applicant and the victim were at a supermarket in Karawara. They had a verbal altercation. The argument continued until after both of them entered the car, with the applicant driving the vehicle. The applicant insulted the victim and grabbed at her eye, causing a small cut under her right eye. When they got home, the applicant kicked her to the ground. He stepped on her head with his foot. He said, ‘Do you think you are a successful lady, the treasure that you have in your head in (sic) underneath my foot’.

16. Offence 4: common assault in circumstances of aggravation or racial aggravation. Between 7:00am and 8:00am on either 20, 21 or 22 August 2021, the applicant and the victim were at their home in Como. The victim saw a message on the applicant’s phone from a female with a romantic inference on it. She asked him about the message and he hit her to the chest with the mobile phone. He grabbed the victim by her right arm and twisted it and her fingers. The victim attempted to escape his grip but was pulled back by her hair.

17. Offence 5: impeded another person’s normal breathing or blood circulation by applying pressure to neck. The applicant grabbed the victim by her neck and strangled her for approximately one minute causing complete obstruction to the victim’s breathing.

18. The applicant was arrested on 2 December 2021.

19. It is clear from the delegate’s decision that the victim in the matter was the applicant’s partner. The delegate determined that the alleged behaviour of the applicant in relation to the alleged victim, coupled with the laying of formal charges is sufficient to satisfy that the applicant is a risk to the safety of an individual, namely the victim.

20. The Tribunal determined to wait for the outcome of the charges against the applicant before conducting a hearing and making a decision. On 19 May 2023, WA Police advised the Tribunal that on 17 May 2023 the applicant was found not guilty and acquitted of all charges. A submission subsequently made on behalf of the applicant referred the applicant being acquitted of all the charges as one matter in support of the Tribunal overturning the cancellation of the visa.

21. Given that none of the allegations have been substantiated by virtue of the acquittal, the Tribunal is not satisfied that the applicant is a risk to his wife. The evidence does not satisfy that the applicant is or may be a risk to anyone else. The Tribunal is not therefore satisfied that the ground of cancellation is made out.

22. For these reasons, the Tribunal is not satisfied that the stated ground for cancellation in s 116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

23. The Tribunal notes that the applicant was granted a Student visa on the basis of him being a family member of his wife who was granted the substantive Student visa. It would appear on information before the Tribunal that the applicant is now separated from his partner. This could cause the view to be formed that the applicant’s visa could be cancelled under s 116(1)(a) of the Act on the basis that the visa was granted on a particular fact or circumstance that is no longer the case or no longer exists. The circumstances that no longer exist is that the applicant is no longer, for the purpose of reg 1.12 of the Migration Regulations 1994 (Cth) (the Regulations), the spouse or de facto of the primary visa holder and that that relationship is no longer continuing and that they do not live together.

24. As put to the applicant in hearing, the applicant did not appear to be the spouse of his wife as is defined in s 5F of the Act as they did not appear as required to have a mutual commitment to a shared life as a married couple and the relationship between them was not genuine and continuing.

25. In the hearing the applicant initially sought to maintain that the relationship was still on foot. The Tribunal questioned this given evidence that had subsequently been provided that the applicant’s partner had sought a divorce in Egypt, albeit unsuccessfully. The applicant eventually indicated that while from his perspective the relationship was still on foot, his wife was seeking to destroy him.

26. On the evidence before the Tribunal, the Tribunal does not consider that the applicant is the spouse of his wife as defined and is not a member of the wife’s family unit. Thus, there is another basis on which the applicant’s visa could be cancelled.

27. However, as this was not the basis on which the visa was cancelled the Tribunal proceeds to set aside the decision to cancel the visa given the ground on which it was cancelled. The Department would need to take separate steps to cancel the visa on the basis of the applicant no longer being in a relationship with the primary visa holder.

28. It was apparent to the Tribunal from Departmental records that after the cancellation of the Student visa the applicant had, on 12 May 2022 made an application for a Bridging visa. However, records indicated that this had not been determined more than a year later.

29. Records indicate that on 7 February 2023 the applicant was taken into Immigration detention where he remains. The Tribunal explored with the applicant and representatives in the hearing if they knew why the Bridging visa decision had not been made, particularly at the point the applicant was taken into detention. Both the applicant and the representatives could not explain this other than to indicate that frequent requests to the Department had been made for a decision.

30. 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

31. 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