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– dependant on wife’s visa – risk to safety of individual – interim domestic violence order and criminal charge withdrawn – decision without hearing required – decision under review set aside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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. The applicant provided a written response to the NOICC on 26 February 2020.

7. The delegate proceeded to cancel the applicant’s student visa on 23 March 2020 under s.116(1)(e).

8. On 27 March 2020, the applicant provided the Tribunal with a copy of the primary decision made by a delegate of the Minister. The delegate cancelled the applicant’s Student visa under s.116(1)(e)(ii) of the Act on the basis that the applicant had an interim domestic violence order issued against him by the South Australian Police – despite it being withdrawn, and his presence, therefore, meant the presence of the applicant in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

9. The applicant was represented in relation to the review by a legal practitioner from BSG Lawyers. The Tribunal received a legal submission on 9 November 2021 and various other documents attached, including:

   ·A statutory declaration from the applicant’s wife dated 2 March 2020;

   ·A certificate of record from the South Australian Magistrates’ Court indicating the applicant appeared before a court regarding aggravated assault against his own spouse with a weapon on 20 January 2020 and that this criminal charge against the applicant withdrawn on 25 February 2021;

   ·A National Police Check issued on 22 July 2020 that the applicant had no disclosable court orders recorded against his name;

   ·A Police Clearance Certificate issued on 29 July 2020 by the Consulate-General of India in Sydney that the applicant does not have any adverse information against his name; and

   ·A Certificate III in Light Vehicle Mechanical Technology issued to the applicant on 5 April 2021.

10. Section 360(2)(a) of the Act provides that the Tribunal does not have to invite the applicant to appear before it to give evidence and present arguments if the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it. Having read the documents submitted by the applicant’s representative on 9 November 2021 the Tribunal is satisfied that it should decide the review in the applicant’s favour and has cancelled the hearing scheduled that had been scheduled for 11 November 2021.

11. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

12. 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

13. 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)(ii). 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

14. A visa may be cancelled under s.116(1)(e)(i) 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. 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].

15. At the time of the delegate’s decision the applicant had charged with the following recorded criminal offence in the State of South Australia on 20 January 2020:

    ·Agg - Commit Assault – Against Own Child/Spouse - with Weapon.

16. The alleged victim was the married wife of the applicant. There is evidence on file that the alleged incident involved a knife as a weapon and that it occurred on 19 December 2019.

17. The same certificate of record from the South Australian Magistrates’ Court demonstrated this criminal charge against the applicant withdrawn on 25 February 2021.

18. The Tribunal accepts the evidence before it that there are criminal charges were filed against the applicant and then withdrawn before the courts. It further accepts that there have been no further criminal charges brought forwarded against the applicant at the time of making this decision. Neither is there any evidence criminal charges convictions or findings of guilt recorded against the applicant in Australia., or in India.

19. The Tribunal notes the applicant made specific admissions during his interview with South Australian Police about an incident. It also notes that the applicant’s spouse referred ‘some reasons’ leading to a complaint against her husband related with domestic violence and that she had applied to have interim intervention order withdrawn. The Tribunal is not satisfied based on the applicants admissions and the vague statements made by the applicant’s wife that the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

20. The Tribunal accept the representative’s argument and observation that had the authorities in South Australia believed the applicant has something to answer, they would have continued to prosecute, even without the spouse’s withdrawal of an interim order against the applicant.

21. Furthermore, the Tribunal notes that the applicant consented in relation to the non-contact interim order and that he did so on a ’non-admission’ basis.  An interim intervention order is not a criminal change and criminal penalties may apply fir the order is breached. There is no evidence that he breached any of the conditions imposed on his by this interim order.

22. The Tribunal notes that the delegate placed little weight on the withdrawal of charges against the applicant as the withdrawal probably involved intimidation against the alleged victim. Such withdrawals did not mean the alleged criminals did not commit the alleged offences, the delegate argued. The delegate was convinced the applicant’s presence in Australia posed a risk to the safety of an individual, specifically his spouse, and proceed to cancel the visa.

23. The Tribunal has some sympathy for this position, given the scourge domestic violence represents to Australian society.

24. However, based on the available evidence, the Tribunal find it would not be proportionate or fair for it to overemphasis any misgivings it may have solely arising from the issuing of an interim intervention order and the associated charge in the context of a serious criminal charge being subsequently withdrawn.

25. 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

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Brendan Darcy
    Member