Bui (Migration) - [2019] AATA 979

Bui (Migration) [2019] AATA 979 (8 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xuan Thien Bui
CASE NUMBER:  1821820
HOME AFFAIRS REFERENCE(S):           BCC2018/3804247
MEMBER:Kira Raif
DATE:8 January 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 08 January 2019 at 5:32pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa – a risk to the safety of an Australian community or a segment of the community – criminal charges and the conviction – Grounds for cancellation exist – decision under review affirmed

LEGISLATION
Crimes Act 1900 (NSW), s 316
Drug Misuse and Trafficking Act 1985 (NSW), s 23
Electricity Supply Act 1995 (NSW), s 64
Migration Act 1958, ss 48, 116
Migration Regulations 1994, r 2.43
CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 23 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of Vietnam, born in July 1991. He was granted the Spouse visa in December 2016. In July 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 a written response to the NOICC and his visa was cancelled on 23 July 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 3 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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.
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…

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.

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Details

Case: [2019] AATA 979
Decision Date: 8 January 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Bui against the cancellation of his Subclass 820 (Spouse) visa by the Department of Home Affairs. The cancellation was based on the ground that Mr. Bui's presence in Australia posed a risk to the safety or good order of the Australian community, stemming from criminal charges and a subsequent conviction. The Administrative Appeals Tribunal (AAT) was tasked with reviewing the Department's decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal also considered the applicant's submissions regarding his relationship with his Australian spouse and child, and the potential consequences of visa cancellation, including the application of section 48 of the Act.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied due to the criminal charges and conviction, which indicated a risk to the Australian community. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion. It acknowledged the applicant's relationship with his spouse and child as a compelling reason for him to remain in Australia, and accepted that he was fulfilling the purpose of his Partner visa. However, the Tribunal determined that the applicant's past compliance with student visa conditions was not relevant to the current cancellation decision. After considering all circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr. Bui's Subclass 820 (Spouse) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the presence of the applicant in Australia may be a risk to safety or good order of the Australian community. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The purpose of a Partner visa is to enable the applicant to remain with his wife in Australia. The applicant states in his submission to the delegate that he entered Australia on a Student visa and was subsequently granted a Partner visa on the basis of his relationship with Ms Quach. The Tribunal accepts for the purpose of this review that the applicant is in a relationship with Ms Quach. The applicant states that the cancellation of his visa would result in his permanent visa being refused and that he would be subject to s.48 of the Act. The Tribunal accepts that this would be so although the Tribunal is also mindful that the applicant may make certain applications onshore and many others offshore. The delegate states in the primary decision that the applicant held Student visas prior to being granted the Partner visa but he had the CoEs for various courses cancelled and only completed non-award courses and did not commence the Masters course for which he obtained the visas. The applicant explained to the Tribunal that once he married his wife, he decided to find a job and let her study because once he started his own family, he was no longer receiving financial support from his parents. The Tribunal is of the view that the ground for cancellation relates to the present visa that is the subject of the cancellation and not previous visas held by the applicant. Whether or not the applicant fulfilled the purpose of his Student visas, it is not the cancellation of his Student visa that is under consideration. If there was non-compliance with the conditions of the previously held Student visas, there may have been grounds for cancelling those visas, but such non-compliance is not relevant, in the Tribunal’s view, to the present cancellation. As the applicant appears to be in a relationship with his wife, the Tribunal is satisfied that he is fulfilling the purpose of his Partner visa. The Tribunal is also of the view that the presence of the applicant’s wife and child in Australia may constitute a compelling reason for him to remain in Australia. The extent of compliance with visa conditions