Grewal (Migration) - [2021] AATA 5106

Grewal (Migration) [2021] AATA 5106 (10 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep Singh Grewal
CASE NUMBER:  2006234
HOME AFFAIRS REFERENCE(S):          BCC2020/16491
MEMBER:Brendan Darcy
DATE:10 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 November 2021 at 10.06am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – dependant on wife’s visa – risk to safety of individual – interim domestic violence order and criminal charge withdrawn – decision without hearing required – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(e)(ii), 360(2)(a)
CASE
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a 25-year-old and citizen of the Republic of India. He arrived in Australia on a student visa as a dependant on his wife’s student visa which was granted on 18 January 2019. The applicant’s visa was set to expire on 2 September 2021.
A Notice of Intention to Consider Cancellation (NOICC) was validly issued to the applicant on 24 February 2020 by the Department. It outlined to the applicant that the cancellation consideration was on the basis of s.116(1)((e)(ii): the presence of a visa holder in Australia is or may or would or might be a risk the health or safety of an individual or individuals.
According to NOICC, the Department had received information from the South Australian Police that the then visa holder has been charged with the offence of aggravated assault in relation to an alleged domestic violence incident against his wife (the victim) which allegedly occurred on 9 December 2019. The alleged circumstances around this offence, are that during a verbal argument in the kitchen on 9 December 2019, while the victim was cooking, the visa holder picked up a kitchen knife, stood in front of the victim and grabbed her right hand and turned over her wrist. He then used the knife to slash the inside of her wrist and grabbed her left hand and held it down on the hot plate, resulting in a burn to her hand.
The NOICC stated that police have issued the visa holder an interim non-contact intervention order in relation to the victim. This order will also be further considered at a Magistrates’ Court on 25 February 2020. The victim has signed a ‘no action’ form for the charges to be withdrawn.
The applicant provided a written response to the NOICC on 26 February 2020.
The delegate proceeded to cancel the applicant’s student visa on 23 March 2020 under s.116(1)(e).
On 27 March 2020, the applicant provided the Tribunal with a copy of…

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

AGLC: Grewal (Migration) [2021] AATA 5106
Case: [2021] AATA 5106
Decision Date: 10 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr Grewal, who sought review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on concerns regarding the safety of an individual, which were apparently linked to an interim domestic violence order and a criminal charge that had since been withdrawn.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(e) of the *Migration Act 1958* (Cth) were established. Specifically, the Tribunal had to determine if the circumstances warranted a finding that the applicant's presence in Australia posed a risk to the safety of any individual, or if the applicant had provided false or misleading information in relation to their visa application.

The Tribunal reasoned that the withdrawal of the interim domestic violence order and the criminal charge significantly altered the factual basis upon which the cancellation decision was made. In the absence of these matters, the Tribunal was not satisfied that the grounds for cancellation under section 116(1)(e)(i) or (ii) were met. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the original decision to cancel Mr Grewal's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.

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

For these reasons, the Tribunal is not satisfied that the ground for cancellation in either part (i) or part (ii) of section 116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Brendan DarcyMember

Ratio Decidendi

Legal Principle Established

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