FU (Migration)

[2020] AATA 3460

FU (Migration) [2020] AATA 3460 (14 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhaohong FU

CASE NUMBER:  1932866

HOME AFFAIRS REFERENCE(S):          BCC2019/4421538

MEMBER:Mark O'Loughlin

DATE:14 May 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 580 Student Guardian visa.

I, Member M. O’Loughlin, certify that this is the Tribunal’s statement of decision and reasons.

Statement made on the 14^th May 2020 at 17.27pm.

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 580 Student Guardian – applicant charged with a criminal offence – charge subsequently withdrawn by police prosecutor – ground for cancellation does not exist – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 580 Student Guardian visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i). 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 was represented in relation to the review by his registered migration agent.

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)(i). 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. The applicant was charged with a criminal offence. 

7. The delegate of the Minister cancelled the applicant’s visa on 13 November 2019 having found that there were grounds for the cancellation on the basis that those charges had been brought.

8. There is no doubt that the fact that the investigating or prosecuting authorities believe that there is reason to pursue such charges can be sufficient to make out relevant grounds for cancellation.

9. The applicant has now provided the Tribunal with a record of outcome that shows that the charge was withdrawn by the police prosecutor on in February 2020.

10. The Tribunal finds that the information before it no longer establishes that the investigating or prosecuting authorities believe that there is reason to pursue criminal charges against the applicant.

11. There is no other information before the Tribunal that could be relied upon as a ground for cancellation of the applicant’s visa.

12. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(i) 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 580 Student Guardian visa.

    Mark O'Loughlin
    Member