H Al Sharyah (Migration)

[2017] AATA 2514

H Al Sharyah (Migration) [2017] AATA 2514 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muteb Mohammed H Al Sharyah

CASE NUMBER:  1715860

DIBP REFERENCE(S):  BCC2016/3723980

MEMBER:Rachel Westaway

DATE:13 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 13 September 2017 at 3:52pm

CATCHWORDS

Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Risk to the community – Cancellation based on charges against applicant – Charges withdrawn

LEGISLATION

Migration Act 1958, s 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 July 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector 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 has engaged in behaviour which demonstrates that he is or maybe a risk to the 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. The applicant was represented in relation to the review by his registered migration agent and solicitor.

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). 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. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

7. The applicant’s representative provided a submission to the Tribunal dated 12 September 2017 stating the applicant’s charges have been withdrawn. A Certificate of Record from the Magistrates Court of South Australia was supplied. The applicant requested a decision on the papers given the fact that the charges were dropped and the grounds for cancellation were made out based on theses.

8. The Tribunal requested further clarification as the Certificate of Record did not provide sufficient detail.

9. On the 13 September 2017 the applicant’s lawyer provided an email from the prosecuting solicitor confirming that they will make an application to tender no evidence and stating the applicant has been detained because of these allegations.

10. As the charges have been dropped and the case withdrawn and the Tribunal is in receipt of confirmation that there is no intent from the Prosecution to pursue the matter, 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.

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

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Rachel Westaway
    Senior Member