Ni (Migration)

[2020] AATA 516

Ni (Migration) [2020] AATA 516 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fengsheng Ni

CASE NUMBER:  1920712

HOME AFFAIRS REFERENCE(S):          BCC2019/2583724

MEMBER:Michael Ison

DATE:14 February 2020

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 14 February 2020 at 2:21pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – risk to health, safety and good order – charges withdrawn – decision under review set aside

LEGISLATION

Crimes Act 1958 (Vic), s 195H
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 19 July 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 delegate cancelled the visa under s.116(1)(e)(i) on the basis that the delegate found the applicant would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community because the applicant was charged with one count of affray. 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. 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

4. 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)(i). 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)(i) - risk to the Australian community

5. A visa may be cancelled under s.116(1)(e)(i) 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. 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].

6. 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.

7. Affray is an offence under s.195H of the Crimes Act 1958 (Vic) that is punishable by up to five years imprisonment or seven years imprisonment if the person was wearing a face covering in certain circumstances at the time. Affray is an offence that involves unlawful fighting, violence, or a display of force by at least one person against one or more people. Affray is typically a charge that is laid in situations where a person is involved in a fight or brawl in a public place.

8. On 13 February 2020 the applicant informed the Tribunal that the charge had been withdrawn. The applicant provided a certified extract of a court order from the Magistrates’ Court of Victoria at Melbourne certifying that on 22 October 2019 the charge of affray under s.195H of the Crimes Act filed against the applicant had been “Struckout – withdrawn”. The Tribunal accepts this evidence.

9. On 12 February 2020 the Department informed the Tribunal that the applicant had been granted a Bridging E (Subclass 050) visa on 29 January 2020. The Department provided the Tribunal with a copy of the Visa Grant Notice to the applicant for the Bridging E visa. The Tribunal accepts this evidence.

10. The Department also provided the Tribunal with copies of the following documents:

    ·A letter from Paul Vale Criminal Law Barristers & Solicitors to the applicant dated 22 October 2019 confirming that the criminal charge of affray filed against him had been withdrawn;

    ·The certified extract of a court order referred to in paragraph 8 of these reasons; and

    ·A covering letter dated 31 December 2019 to the applicant’s application for a Bridging E (Subclass 050) visa.

11. In circumstances where the criminal charge filed against the applicant has been struck out as withdrawn and the applicant now holds a Bridging E visa that entitles him to live in the community until his application in relation to his substantive visa, being a Subclass 500 Student visa, is finalised, 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

12. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(i) 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 500 (Student) visa.

    Michael Ison
    Senior Member