Hu (Migration)

[2020] AATA 4659

Hu (Migration) [2020] AATA 4659 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Xinrui Hu

CASE NUMBER:  1925074

HOME AFFAIRS REFERENCE(S):          BCC2019/3694711

MEMBER:David McCulloch

DATE:20 August 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 500 (Student) visa.

Statement made on 20 August 2020 at 1:02pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the health, safety or good order of the Australian community – two charges against the applicant dismissed – ground for cancellation does not arise – decision under review set aside   

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994

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 28 August 2019 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 citizen of the People’s Republic of China. The visa that has been cancelled was granted on 11 August 2018 valid until 15 March 2023.

3. The delegate wrote to the applicant on 6 August 2019 providing a Notice of an Intention to Consider Cancellation of the visa (NOICC) and requesting a response from the applicant.  A response was not provided by the applicant.

4. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant may be, or would or might be, a risk to the health, safety or good order of the Australian community or 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.

5. The Tribunal has determined the matter without the need for a hearing.

6. 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

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). 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. There is information before the Tribunal which suggested that the applicant 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.

11. On the Departmental file is a Court Attendance Notice for the Burwood Local Court in relation to a Court attendance for the applicant on 25 July 2019. It indicates that the applicant has been charged with two offences: Stalk or intimidate intending to cause fear of physical or mental harm (domestic violence offence) and Assault occasioning bodily harm. These relate to events occurring on 22 July 2019 at Rhodes.

12. The applicant’s migration agent provided evidence to the Tribunal that the two charges against the applicant were dismissed by the Burwood Local Court on 14 July 2020 with the applicant being found not guilty of the offences after hearing. This information was confirmed to the Tribunal with the New South Wales Police.

13. The sole basis for it being claimed that the applicant is or might be a risk to the community and/or individuals are the two charges against the applicant. As the charges have been dismissed and not proven the factual allegations leading to the charges are not probative of adverse conduct by the applicant.

14. Given that the charges have been dismissed and not proven the Tribunal is not satisfied that the applicant 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.

15. 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.

    DECISION

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

    David McCulloch
    Member