Khan (Migration)

[2019] AATA 3663

Khan (Migration) [2019] AATA 3663 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sadnan Khan

CASE NUMBER:  1838189

HOME AFFAIRS REFERENCE(S):           BCC2017/4800086

MEMBER:Rachel Westaway

DATE:31 July 2019

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 31 July 2019 at 2:28pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – refusal to grant an adjournment – legal unreasonableness – ground for cancellation – risk to safety of Australian community or individual – charged with four counts of ‘Assault with Act of Indecency’ – found not guilty of all offences by District Court – basis on which conviction was overturned – insufficient evidence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

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 17 January 2018 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 delegate cancelled the visa under s.116(1)(e) on the basis that the presences of the holder in Australia is or maybe 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. 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. Mr Khan is a visitor to Australia on a student visa from Bangladesh. He was granted the subclass 500 student visa on 30 November 2016 with the intention to undertake a Graduate Diploma and then Masters in IT Security at Sydney University. At the time of the second Tribunal hearing, the applicant had one semester left before he was to graduate.

4. On 16 November 2017 the visa holder was arrested and charged by the New South Wales Police with 4 counts of ‘Assault with Act of Indecency’. The applicant provided a copy of the delegate’s decision when he appealed the decision to the Administrative Appeals Tribunal.

5. The alleged female victims were unknown to Mr Khan. The offences were alleged to have been committed on two different days in October 2017 in George Street and Haymarket in Sydney with most of the alleged offences occurring in Central Railway Station. It was claimed that the applicant grabbed or touched the alleged victims’ breasts.

6. Evidence used to support the charges included Sydney Train Closed Circuit Television (CCTV) footage and a witness’s statement indicating it was not inadvertent but deliberate. Photographs from one witness showed a person seen in close proximity to the alleged victim.

7. NSW police compared images from CCTV footage and those taken by the witness and believed them to be the same person. When arrested the visa holder stated that he might have “inadvertently” touched the women.  The visa holder was shown photographs from the incidents and agreed that it was him in the images and confirmed that he was in the locations when the incidents took place. He claimed that if he did touch anyone it was accidental.

8. The applicant was charged and based on the charges; the delegate found that grounds for cancellation of his student visa were enlivened and that factors in favour of cancelling the visa outweighed those against cancelling the visa.

9. On the evidence before the Tribunal, Mr Khan pleaded not guilty to the charges. In evidence provided to the court and also to the first Tribunal he stated whilst the video and photographic evidence showed him in close proximity to the alleged victims, it did not show any physical contact. He stated that his hands were always visible. Whilst he acknowledged that for the first offence there was the alleged victim’s claim, there were no witnesses and the video and photographic evidence simply did not support the case. He also referred to his ‘clean record’.

10. The first Tribunal stated that the applicant and then the Tribunal postponed the second hearing on numerous occasions and that following the hearing the applicant requested that the Tribunal wait and schedule another hearing in support of his appeal of the subsequent convictions. The applicant advised the Tribunal after the first hearing that he was convicted and given a prison sentence but requested a delay in the decision as he was appealing the case to the District Court. The Tribunal declined to schedule another hearing explaining that the standard of proof in criminal proceedings is different to that which the Tribunal must consider in s.116(1)(e) of the Act.

11. The first Tribunal considered the information before it and determined that the visa should be cancelled on 23 July 2018.

12. On 7 September 2018, the appeal was heard in the District Court of NSW and Mr Khan’s convictions were set aside and he was found not guilty.

13. On 19 December 2018, the applicant’s appeal was heard in the Federal Circuit Court. The matter was remitted back to the Administrative Appeals Tribunal as the court found that the Tribunal’s decision was affected by jurisdictional error on the basis that the Tribunal’s decision to refuse to grant an adjournment of the applicant’s proceedings pending the outcome of his appeal was legally unreasonable in the circumstances and it noted that the Tribunal had adjourned the hearing pending the outcome of the prosecution of the applicant in the Local Court, and the date of the District Court appeal hearing was listed the following month after the Tribunal hearing.

14. The applicant appeared before the second Tribunal on 29 July 2019 to give evidence and present arguments.

15. 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

16. 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?

    s.116(1)(e) - risk to Australian community or individual

17. 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].

18. 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.

19. The Tribunal considered the most recent evidence before it, namely the Court Order Notice finding Mr Khan not guilty of all offences (Tribunal file 1838189 f:298).

20. Mr Khan confirmed to the Tribunal that he was not in detention. He provided the Tribunal with evidence of his intention to remain studying and his payment of fees to Sydney University.

21. He provided the Tribunal with recent copies of his clean police record and told the Tribunal he was engaged. He explained that he would like to complete his Masters and obtain work experience in Australia.

22. The Tribunal asked Mr Khan on what bases his conviction was overturned. The Tribunal explained to Mr Khan that the Tribunal decision did not rely solely on the charges and that the assessment was different to that of his criminal charges. The Tribunal asked the applicant about the evidence before it namely Police Fact sheets in which  Mr Khan was documented as confirming he may have touched the alleged victims. Mr Khan explained there was insufficient evidence to support the conviction that he intentionally touched the women. He stated that he did not intentionally touch the women and that  the photographic evidence and frames which were included and pictures in sequence show that it would be impossible to have moved his arm so quickly as to have touched the alleged victim or moved his arm under her jacket. He stated that he believes that the alleged victim made the claim which may have been racially motivated.

23. The Tribunal has considered the documentary evidence as well as Mr Khan’s explanations.

24. The Tribunal places significant weight on the District Court Order supported by Mr Khan’s explanation and finds that there is no evidence to suggest that he maybe 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.

25. 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.

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

    DECISION

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

    Rachel Westaway
    Senior Member