Mauricio De Melo (Migration)

[2018] AATA 5479

Mauricio De Melo (Migration) [2018] AATA 5479 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eduardo Henrique Mauricio De Melo

CASE NUMBER:  1715852

HOME AFFAIRS REFERENCE(S):           BCC2017/2044819

MEMBER:David McCulloch

DATE:20 November 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 500 (Student) visa.

Statement made on 20 November 2018 at 9:16am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – charged with an offence – found not guilty by District Court of New South Wales – acted in self-defence – Australian Federal Police Certificate – no criminal conviction or pending criminal matters – 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 20 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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 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.

3. 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. The Tribunal was able to make this determination without the need to conduct a hearing with the applicant.

   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 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].

7. 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.

8. The decision of the delegate indicates that on 4 May 2017 the applicant was arrested and subsequently charged by New South Wales Police with the following events:

   -    Wound person with intent to cause grievous bodily harm – Strictly Indictable.

9. On the Departmental file is a New South Wales Police Facts Sheet detailing claims in relation to the incident leading to the arrest. The incident is claimed to have occurred at 2:20am on Sunday, 2 April 2017. It is alleged that the applicant was talking to a woman, whose nearby friend was the ultimate victim of the applicant. The woman left the situation and was with the victim, causing the applicant and another accused to approach the victim and the woman. The victim said ‘What’s going on? She’s my sister’.  The co-accused allegedly pushed the victim before punching him in the face. The victim retaliated and punched the co-accused in the face. Allegedly without warning, the applicant struck the victim in the face with a glass bottle. The applicant allegedly ran away. The victim underwent emergency surgery for severe lacerations to his face. The victim has had in excess of 50 stitches to date and has been informed by doctors that he will have permanent scarring to his face and inside his mouth. CCTV footage covered the majority of the incident. The applicant allegedly made no attempt to render first aid. The applicant can allegedly be seen approaching the victim, engaging the victim and running away.

10. A search warrant was executed at the applicant’s residence several days later. The applicant was eventually arrested. The applicant participated in an electronically recorded interview in which he made full admissions to striking the victim with a champagne glass. The applicant claimed that he did this in self-defence. He ran away because he was scared of what he had done and the consequences he may face. The applicant reportedly showed considerable remorse for what he had done. He has suffered physical or mental trauma as a result of this unprovoked assault.

11. A Bail Acknowledgement on the Departmental file indicates that on 29 June 2017 the applicant was granted bail in relation to the offence.

12. The applicant’s lawyer provided a response on behalf of the applicant to the notice of intention to consider cancellation (NOICC).  It confirms that the applicant has been charged with the outlined offence and has entered a plea of not guilty. It is indicated that there are witnesses to the incident who are intended to be called. It is noted that the Facts Sheet is not a signed sworn statement that can be relied upon in evidence at trial. It is a police narrative only. It is submitted that a decision in relation to the visa should await the trial of the matter.

13. Provided to the Tribunal on 6 November 2018 was a Court Order Notice relating to an order on 2 November 2018 of the District Court of New South Wales indicating a not guilty verdict in the proceedings relating to the applicant.

14. The applicant’s representative provided a written submission to the Tribunal dated 6 November 2018. The submission requests a remittal of the matter without a hearing on the basis that the applicant has been cleared of all charges. It is submitted on that basis that there are no grounds for cancellation. It is indicated that the court determined that the applicant had acted in self-defence. It is indicated that the applicant has no criminal record. It is indicated that an Australian Federal Police Certificate is to be provided as further evidence that the applicant has no criminal convictions, or pending criminal matters. A National Police Certificate was provided to the Tribunal dated 13 November 2018 indicating that there are no disposable Court outcomes recorded against the applicant as at 7 November 2018.

15. The applicant has been found not guilty of the charge against him. There is no other evidence before the Tribunal to suggest that the applicant 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 community.

16. For the above 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

17. 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