Ferdous (Migration)

[2020] AATA 5987

Ferdous (Migration) [2020] AATA 5987 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farial Ferdous

CASE NUMBER:  1927592

HOME AFFAIRS REFERENCE(S):          BCC2017/4881292

MEMBER:David McCulloch

DATE:23 November 2020

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 23 November 2020 at 11:18am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – Federal Circuit Court remittal – criminal charges- applicant was found not guilty of both charges- decision under review set aside

LEGISLATION
Migration Act 1958, ss 116

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 23 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (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, a named individual with whom the applicant had been in a relationship with for the previous three years. 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. The applicant had previously applied to the Tribunal for review of the delegate’s decision, and the Tribunal affirmed the decision on 4 July 2018. The applicant applied to the Federal Circuit Court for review of this decision, and the Court remitted the matter on 28 August 2019.

4. 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

5. 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?

6. 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].

7. 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.

8. The Department file contains police documents relating to one charge of common assault (domestic violence) and one charge of assault occasioning actual bodily harm (domestic violence) that were laid against the applicant relating to events that occurred on 17 and 18 December 2017.

9. The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the charges.

10. The Tribunal obtained information from both the New South Wales Police and the applicant indicating that both charges were determined by the Sutherland Local Court on 13 November 2019. The applicant was found not guilty of both charges. The existence of the charges is the sole basis on which it is claimed that there exists the requisite risk of harm to the named individual, his partner at the time of the claimed actions.

11. As the applicant has been determined as being not guilty in relation to the two charges, the Tribunal does not consider that the factual underpinnings as to the alleged circumstances leading to the charges and the claimed risk to the individual have been established to the Tribunal’s satisfaction.

12. That being the case, the Tribunal considers that the ground of cancellation has not been made out.

13. For these reasons, 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

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

    David McCulloch
    Member