Ferdous (Migration) - [2018] AATA 2692

Ferdous (Migration) [2018] AATA 2692 (4 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Farial Ferdous
CASE NUMBER:  1805782
DIBP REFERENCE(S):  BCC2017/4881292
MEMBER:Kira Raif
DATE:4 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 04 July 2018 at 4:48pm

This is an application for review of a decision dated 23 February 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).
The applicant is a national of Bangladesh born in January 1996. He was last granted a student visa in January 2015. On 6 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 23 February 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 26 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. 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. 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 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.
There is no definition of ‘risk’ in the Act or Regulations and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001). The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there…

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: [2018] AATA 2692
Decision Date: 4 July 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr Ferdous, a holder of a Subclass 573 Higher Education Sector visa. The dispute arose from the cancellation of Mr Ferdous's visa on the grounds that his presence in Australia may pose a risk to the health, safety, and good order of the Australian community. This cancellation was based on criminal charges of assault occasioning actual bodily harm of his partner, and the existence of an Apprehended Violence Order against him, despite his denial of the offences.

The primary legal issue before the Tribunal was whether the discretion to cancel Mr Ferdous's visa should be exercised, given that the ground for cancellation under s 116(1)(e) of the Migration Act 1958 (Cth) did not mandate cancellation. The Tribunal was required to consider various circumstances, including the purpose of Mr Ferdous's stay, his compliance with visa conditions, and the degree of hardship that cancellation might cause.

In its reasoning, the Tribunal acknowledged Mr Ferdous's stated purpose of pursuing higher education in engineering at Western Sydney University and the financial investment made by him and his family. It also accepted that he had not breached his visa conditions. However, the Tribunal found that the nature of the alleged criminal conduct and the associated risk to safety outweighed the mitigating factors. While acknowledging the potential hardship, the Tribunal noted that Mr Ferdous might have other opportunities to study elsewhere and did not accept that his future would be ruined by not completing his current course in Australia.

Ultimately, the Tribunal affirmed the decision to cancel Mr Ferdous's visa, concluding that, when considering the totality of the circumstances, the cancellation was warranted.

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

Having considered the totality of the applicant’s circumstances, the Tribunal has formed the view that the nature of the charges and of the alleged conduct outweigh the reasons for not cancelling the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the presence of the visa holder in Australia may be a risk to the safety of an individual or individuals. For these reasons, 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 power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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 AustraliaThe purpose of the applicant’s travel and stay in Australia on a student visa is to enable him to pursue studies in Australia. In his written response to the NOICC the applicant refers to being a student at Western Sydney University in an engineering course. In his written submission to the Tribunal of 12 April 2018 the applicant notes that he has not completed the course and has a compelling need to remain in Australia to complete the course, or he will lose the investment he and his family made in his education. The applicant states in his response to the NOICC that his brother has also completed studies in Australia and his parents invested their life savings to enable him to pursue his studies. The applicant told the Tribunal that he completed a Diploma of Engineering and is enrolled at the University of Western Sydney and will be commencing in July 2018. He will be doing a Bachelor of Engineering, which is a three year course. The applicant subsequently provided to the Tribunal evidence of his enrolment. The Tribunal accepts that if the applicant returns to his study, he will be able to fulfil the purpose of his travel and stay in Australia. The Tribunal acknowledges that the applicant’s ongoing study may result in his need to remain in Australia. The extent of compliance with visa conditions There is no information before the Tribunal to indicate the applicant has not complied with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) In his written evidence, the applicant outlined the hardship that may be caused to him and his family by the cancellation in his response to the NOICC. The applicant refers to the sacrifices his family has made to enable him to study in Australia. The applicant states that his whole life would be a ‘letdown’ if he fails to accomplish what he came here for and it would affect his career and put his academic progress ‘on a halt’. The applicant claims that it would affect his academic progress, mental health and the family’s financial position. In his written submission to the Tribunal of 12 April 2018 the applicant also states that he and his family would lose their investment in terms of money and effort and this would cause psychological and emotional distress. The Tribunal is prepared to accept that this may be the case. The Tribunal accepts that the applicant wishes to complete his studies, and that considerable funds have been spent to enable him to do so, although the Tribunal is mindful that even if he is unable to do that in Australia, the applicant may have other opportunities to pursue study in his home country or any other country, so the Tribunal does not accept that the applicant’s future would be ruined if he cannot complete his present course. as for the family’s financial position, while the Tribunal accepts that considerable funds have been spent to enable the applicant to study in Australia, the applicant has not established that funds would not be available for future study and his willingness to enrol in a course here may indicate that the applicant does have access to funds for future study.