Bhoriwal (Migration)

[2018] AATA 2219

Bhoriwal (Migration) [2018] AATA 2219 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nishant Inder Bhoriwal

CASE NUMBER:  1806360

DIBP REFERENCE(S):  BCC2018/64661

MEMBER:Kira Raif

DATE:10 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 573 Higher Education Sector visa.

Statement made on 10 May 2018 at 9:31am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the ground for cancellation exists – Cancellation based on pending criminal charges against the applicant – Charges withdrawn – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)
Migration Regulations 1994 (Cth),

CASES
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 8 March 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in July 1992. He was last granted the Student visa in November 2014 and that visa was to be in effect until 15 March 2019. On 12 February 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) of the Act. The applicant provided his written response to the Notice and his visa was cancelled on 8 March 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 10 May 2018 to give evidence and present arguments. 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.

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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Student visa in November 2014 and he entered Australia on 3 February 2015. On 3 January 2018 the applicant was charged with sexual assault and was granted bail on 4 January 2018.

8. In his written response to the NOICC the applicant refers to being a person of good character. The applicant refers to his attachment to Australia and his contribution to the society. The applicant provided a number of character references to the Tribunal. The Tribunal acknowledges that evidence but does not consider the applicant’s belief that he is a person of good character to be sufficient to either establish the ground for cancellation, or establish its non-existence.

9. With respect to the charges, the applicant states that there is presumption of innocence and he should not be required to prove his innocence, which is consistent with ICCPR. The applicant notes that although he has been charged, he has not been convicted and the alleged offence did not occur. The Tribunal acknowledges the applicant’s submission but considers it misguided. There is a presumption of innocence in relation to the criminal proceedings. The cancellation of the visa under s. 116(1)(e) does not operate on such a presumption. Either the Tribunal finds that the applicant’s presence in Australia is a risk or it does not and the assessment of risk is not limited to circumstances where the offence has been established or a finding of guilt has been made.

10. At the commencement of the hearing, the applicant informed the Tribunal that the charge has been withdrawn and he subsequently provided to the Tribunal a copy of the Court Order made on 2 May 2018 stating the charge of sexual assault has been withdrawn.

11. There is no indication that the applicant has been charged, or convicted, of any other offence. The only basis for the cancellation of his visa is the charge of sexual assault and that charge has been withdrawn. As such, the Tribunal is not satisfied 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 or an individual or individuals.

12. 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

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Kira Raif
    Senior Member