Khan (Migration)

[2017] AATA 2805

Khan (Migration) [2017] AATA 2805 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mansoor Ali Khan

CASE NUMBER:  1614889

DIBP REFERENCE(S):  BCC2016/2437833

MEMBER:Mr S Norman

DATE:28 July 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.

Statement made on 28 July 2017 at 9:40am

CATCHWORDS

Student (Temporary) (Class TU) visa – Cancellation – Subclass 574 Postgraduate Research Sector visa – Risk to the safety of an individual – Applicant charged with assault – Applicant found not guilty of charges

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 8 September 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) of the Act, on the basis that the applicant had been charged with certain offences. 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 appeared before the Tribunal on 26 July 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

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)(ii) of the Act. 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 was granted a Student (Temporary) (class TU) Postgraduate Research Sector (subclass 574) visa on 28 July 2014. He arrived in Australia on 12 August 2014. The Department was subsequently advised that the applicant had been charged by the NSW Police Force on 16 June 2016 and was scheduled to appear before the Local Court on 12 September 2016 in relation to the following offences:

   ·NSW Crimes Act 1900, section 61, Common Assault (dv) T2 (2 counts); and

   ·NSW Crimes Act 1900, stalk / intimidate intend fear physical harm – domestic – T2.

8. The delegate was satisfied the charges were serious. The delegate noted the charges related to offences against the applicant’s estranged spouse. At the Tribunal hearing, the applicant confirmed they were still estranged. The delegate was satisfied the applicant may represent a risk to the safety of an individual or individuals in the Australian community. It therefore appeared there were grounds for cancellation of the applicant’s visa under s.116(1)(e)(ii) of the Act. This information had been issued to the applicant for comment by Notice of Intention to Consider Cancellation (NOICC) of his visa dated 11 August 2016.

9. In his response, the applicant said the claims by his estranged spouse were false and that he did not and would not act violently. He believed there was “an unacknowledged motivation on the part of his estranged spouse for the complaint made against him”. He believed the complaints of his estranged spouse were exaggerated and inconsistent. He believed this was in order for her to make a Protection visa application. He referred to the complaint being heard in the Burwood Local Court on 12 September 2016 and he expected the matters to be dismissed. He referred to the police fact sheets which did not indicate the estranged wife had any visible injuries and had therefore not suffered any “physical or serious bodily harm”. The applicant believed he was not a risk to the safety of, or harm to, any individual in the Australian community. He said he is a full-time PhD student on an Australian government scholarship and he is focusing on his career. He said he had no intention of engaging in any conduct that would jeopardise the final stage of his PhD qualification (due to be completed in early 2018). As set out in the delegate’s decision, the applicant’s academic record and other evidence, had been lodged.

10. The delegate was eventually satisfied that grounds for cancellation existed and after considering same, exercised the discretion to cancel the applicant’s visa on 8 September 2016.

11. The following information was lodged with the Tribunal and was not before the delegate. By order of the Local Court of NSW dated 7 April 2017, the applicant was found not guilty of all charges against him.[1] By order of the Local Court of NSW dated 7 April 2017, the apprehended violence order against the applicant was dismissed.[2] Based on the evidence before it, the Tribunal is not satisfied that grounds for the cancellation of the applicant’s visa exist.

    [1] Tribunal – from folio 74 (reverse side).

    [2] Tribunal – from folio 73 (reverse side).

12. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(ii) of the Act exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.

    Mr S Norman
    Member