Islam (Migration) - [2018] AATA 5266

Islam (Migration) [2018] AATA 5266 (7 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saiful Islam
CASE NUMBER:  1814685
HOME AFFAIRS REFERENCE(S):           BCC2018/711271
MEMBER:Kira Raif
DATE:7 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.
Statement made on 07 December 2018 at 12:06pm

CATCHWORDS
MIGRATION – Subclass 489 – Skilled – Regional (Provisional) visa – cancellation – not a risk to the health, safety or good order of the Australian community – charged with offences – criminal proceedings finalised – offences dismissed – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116(1)(e), 116(1)(g)
Migration Regulations 1994, Schedule 2
CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 17 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of Bangladesh born in June 1984. He was granted the Provisional Skilled Regional visa in Subclass 489 on 7 April 2016. In April 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 17 May 2018. The applicant seeks review of the delegate’s decision.
No hearing was held in this case as the Tribunal formed the view that it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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)(g). 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.
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].
The…

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.

Keep reading for free

Create a free CaseChat account to read Islam (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 5266
Decision Date: 7 December 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Mr. Islam concerning the cancellation of his Subclass 489 Skilled Regional (Provisional) visa. The dispute arose after the applicant was charged with certain offences, leading to the Department's decision to cancel his visa under section 116(1)(e) of the *Migration Act 1958* (Cth), which relates to risks to the health, safety, or good order of the Australian community.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(e) of the *Migration Act 1958* were established. Specifically, the Tribunal had to determine if the applicant posed a risk to the Australian community, given that the criminal proceedings against him had been finalised and the charges dismissed.

The Tribunal found that the ground for cancellation under section 116(1)(e) was not satisfied. It reasoned that the dismissal of the criminal charges meant that the applicant did not, in fact, pose a risk to the health, safety, or good order of the Australian community. Consequently, the power to cancel the visa did not arise. The Tribunal set aside the original decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 489 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.