GAO (Migration)

[2020] AATA 1360

GAO (Migration) [2020] AATA 1360 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr YUNXIANG GAO

CASE NUMBER:  1817953

HOME AFFAIRS REFERENCE(S):          BCC2018/1554535

MEMBER:Michael Cooke

DATE:9 April 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 408 (Temporary Activity) visa.

Statement made on 09 April 2020 at 3:16pm

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – threat to safety of segment of Australian population – criminal charges – acquittal – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(e)

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 12 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 408 (Temporary Activity) 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 is a threat to the safety of a segment of the Australian population, namely women. 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 appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from: Li Ma, Lida Xu, Lina Fu, Wei Wei, Xuan Dong, Yunzheng Zhang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, Nigel Dobbie. The representative attended the Tribunal hearing.

5. 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

6. 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?

   s.116(1)(e) - risk to Australian community or individual

7. 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].

8. 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.

9. The applicant faced a number of criminal charges in relation to events at a Sydney hotel room in March 2018.

10. The delegate then cancelled the applicant’s Subclass 408 (Temporary Activity) visa.

11. Following these charges, two criminal trials took place in 2019 and 2020. The Tribunal waited for the outcome of the second criminal trial (which took place in March 2020) before proceeding to decide the matter.

12. On Thursday 19 March 2020 the Court acquitted the applicant of five counts of sexual assault and two counts of indecent assault.

13. The acquittal of the applicant on all counts has satisfied the Tribunal “that the presence of the applicant in Australia” is not “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”.

14. 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.

15. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 408 (Temporary Activity) visa.

    Michael Cooke
    Senior Member