Gim (Migration)

[2018] AATA 4931

Gim (Migration) [2018] AATA 4931 (19 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lian Jye Gim

CASE NUMBER:  1618756

HOME AFFAIRS REFERENCE(S):           BCC2016/2915850

MEMBER:Mr S Norman

DATE:19 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 19 October 2018 at 11:00am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – risk to Australian community – charged with serious criminal offences – no possible mitigating circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) s 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 4 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(e)(i) of the Act on the basis that the applicant’s presence 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. 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. By letter dated 17 August 2018 (dispatched by email), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on19 October 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  Two SMS hearing reminder texts were sent to the applicant shortly prior to the hearing.

4. The Tribunal was subsequently advised the applicant had departed Australia on 28 March 2017.

5. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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)(i) of the Act. 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. 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].

9. 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.

10. The applicant was granted a Student (Temporary) (Class TU) – subclass 572 – Vocational Education and Training Sector visa on 4 March 2016. By Notice of Intention to Consider Cancellation (NOICC[1]), the applicant was advised that information from the NSW Police indicated the applicant had been charged by the NSW Police on 2 September 2016 with the following criminal offences:

    · Armed with intent to commit indictable offence, subsection 114 (1)(a), Crimes Act 1900 (NSW); and

    · Common Assault prosecuted by indictment, section 61, Crimes Act 1900 (NSW)[2]

    [1] Department – from folio 27.

    [2] Department – from folio 17 (and included in Department decision).

11. The delegate noted the charges related to an incident where the applicant held a knife to the throat of another person,[3] causing the victim to fear for their safety. The delegate then noted that due to the above charges, it appeared the presence of the applicant in Australia may be a risk to the safety of the Australian community. Further, it therefore appeared there was a ground to cancel the applicant’s Student visa under s.116(1)(e)(i) of the Act.

    [3] Department – folio 15 (and included in Department decision). 

12. In his response,[4] the applicant said he studied in Australia; he worked part-time in a Japanese restaurant in Mosman; he regretted his actions; this was the first time he had engaged in this type of incident in his life and it is the first time he had studied outside Malaysia; he had no family or guardian in Australia; he now requested that his visa not be cancelled; and that he was provided time to ‘complete his case until 2nd December’ by which date he believed he could retain a lawyer.

    [4] Department – folio 28.

13. The delegate then noted the charges constituted serious offences and they were therefore satisfied there was a ground to cancel the applicant’s Student visa under s.116(1)(e)(i) of the Act.

14. Based on the evidence before it, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

16. The applicant was a student at the Institute of Technology and Education (Parramatta). He had also worked part-time 20 hours per week at a named Japanese restaurant in Mosman. He said he came to Australia to study and believed Australia would be his ‘pathway to his destination’. The applicant also said his intention for travelling to and residing in Australia was for the purposes of study. The Tribunal understands the applicant had departed Australia. However, I accept his initial intention in travelling to and residing in Australia was for the purpose of study.

17. The ground for cancellation arose due to the applicant having been charged with serious offences in Australia. The incident involved the applicant having conflict with a colleague and ‘shoving his victim against a wall and holding a knife to his throat’. Neither the Tribunal nor the delegate had information about any possible mitigating or other circumstances.

18. If the applicant’s visa is cancelled, the Tribunal accepts that he or his family may be subject to some limited hardship. He may also be subject to being detained under s.189 and removed under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. He could have possibly also retained his Bridging visa in order to remain in the community to organise his affairs prior to departing.

19. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48; and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation. The Tribunal also notes that if the applicant’s visa is cancelled, he said he would have to cease his studies and work in Australia. However, such matters need to be considered against the risk to the Australian community; and the Tribunal notes the applicant has already departed Australia.   

20. There is no evidence the applicant has not complied with other conditions to which his visa was subject. The Tribunal has no evidence the applicant has been uncooperative with either the Tribunal or the Department. The Tribunal has no evidence that any other persons visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

21. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

22. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Mr S Norman
    Member