Ali (Migration)

[2018] AATA 2364

Ali (Migration) [2018] AATA 2364 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Atif Ali

CASE NUMBER:  1728007

HOME AFFAIRS REFERENCE(S):           BCC2017/2619783

MEMBERS:Kira Raif (Presiding)

Grant Chapman

DATE:31 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 31 May 2018 at 2:16pm

CATCHWORDS
Migration – Cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Risk in Australia – Withdrawn criminal charges – Outcome of criminal proceedings – Decision under review set aside

LEGISLATION
Migration Act 1958, s 116, 375A

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 7 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan, born in October 1988. He was granted a Provisional Partner visa in March 2017. In August 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant’s presence in Australia is or may be or might or would be a risk of the kind specified in s. 116(1)(e) of the Act. The applicant provided his response to the NOICC on 12 September 2017 and his visa was cancelled on 7 November 2017. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 8 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent. The Tribunal informed the applicant about the existence of the Certificate under s. 375A of the Act. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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.

5. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the temporary Partner visa in March 2017. In July 2017 the Department received information that the applicant had been charged with indecent assault and that the victim was a child under the age of 14. The primary decision record indicates that the alleged assault related to a child who had been placed in care at the applicant’s residence.

7. In response to the NOICC, the applicant does not dispute the charges but notes that there has been no conviction and that he would contest the charges. The applicant noted that he had been charged with other offences including damage building or motor vehicle and aggravated assault and that there was an interim intervention order issued against him. The applicant’s oral evidence to the Tribunal is that he had been charged with a number of other offences, which had been dismissed and while he was found guilty of one offence, breach of bail conditions, there was no conviction recorded. The applicant claims he has no other convictions either in Australia or in Pakistan.

8. The applicant requested the Tribunal to await the outcome of his criminal matter before making the decision in the present case and the Tribunal granted the applicant time. On 18 May 2018 the applicant advised the Tribunal that the Indecent Assault charge has been withdrawn and the applicant provided to the Tribunal the Certificate of Record issued by the Magistrates Court of South Australia.

9. In his submission to the Tribunal of 22 May 2018 the applicant notes that the assault charge was the basis of his visa cancellation and that the only offence of which he was found guilty was Failure to Comply with Bail Agreement which was finalised without conviction.

10. The Tribunal acknowledges that it was the assault charge which resulted in the delegate’s finding that the applicant’s presence in Australia was or may have been a risk to an individual or individuals. That charge has been withdrawn and in the Tribunal’s view, can no longer form the basis for such a finding. The Tribunal acknowledges that the applicant has been found guilty of another offence relating to a breach of his bail condition and the applicant’s evidence is that he moved out of the family home following an argument with his then partner and went to live with his sister. The Tribunal does not consider that such actions give rise to any risk.

11. Having regard to the outcome of the criminal proceedings, the Tribunal has formed the view that there is no basis to conclude that the applicant’s presence 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 to the health or safety of an individual or individuals. 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

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif   Grant Chapman
    Senior Member   Senior Member