Chakma (Migration)

[2018] AATA 5680

Chakma (Migration) [2018] AATA 5680 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dipangshu Chakma

CASE NUMBER:  1811585

HOME AFFAIRS REFERENCE(S):           BCC2018/595322

MEMBER:Irene O'Connell

DATE:9 November 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 030 (Bridging C) visa.

Statement made on 09 November 2018 at 10:21am

CATCHWORDS

MIGRATION – cancellation – Subclass 030 (Bridging C) visa – criminal charge – charge withdrawn – decision under review set aside

LEGISLATION
Migration Act 1958, s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 April 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. As a result of events on 2 December 2017 the NSW police charged the applicant with assault with act of indecency under the NSW Crimes Act. The applicant was charged on 1 February 2018 and granted bail on that same day.

3. On 5 March 2018 the delegate issued the applicant with a Notice of Intention to Consider Cancellation (NOICC). The applicant provided a written response on 28 March 2018. 

4. The delegate cancelled the visa under s.116(1)(e)(i) that is, that the presence of the applicant 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.

5. The applicant applied for review with the AAT on 23 April 2018 and made written submission to the Tribunal on 2 November 2018. The applicant appeared before the Tribunal on 8 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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?

8. 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. As set out in Gong v MIBP [2016] FCCA 561, at [41] there does not have to be any direct, solid or certain foundation before the power to cancel a visa under s.116 can arise. It can arise on the possibility that some event occurred in the past.

9. The applicant’s visa was cancelled following the charging of the applicant with one count of indecent assault. This alleged behaviour, formed the basis for the delegate’s finding that the applicant may pose a risk to the safety of a segment of Australian community namely women. The delegate’s decision to cancel the applicant’s visa appears to be grounded solely in this event. No other grounds are identified in the decision record. The delegate acknowledges that the applicant does not have a previous criminal record. There is no reference to any other evidence over and above the one alleged event of the 2 December 2017.

10. In the submission (dated 2 November 2018) the applicant’s representative attached a copy of a Certificate of Order (dated 6 September 2018) from the Burwood Local Court of NSW withdrawing and dismissing the charge of assault with act of indecency against the applicant.

11. As the one charge against the applicant is now withdrawn and dismissed and in the absence of any other evidence before the Tribunal that the applicant may pose a risk to the safety of the Australian community the Tribunal finds that there is no reasonable basis for believing that the applicant is or may be, or would or might be, a risk to the Australian community or a segment of it.

12. For this reason, 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 030 (Bridging C) visa.

    Irene O'Connell
    Deputy Division Head