Puig Rademacher (Migration) - [2018] AATA 1096

Puig Rademacher (Migration) [2018] AATA 1096 (4 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Erik Puig Rademacher
CASE NUMBER:  1801892
DIBP REFERENCE(S):  BCC2017/4980002
MEMBER:Kira Raif
DATE:4 April 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 010 (Bridging A) visa.
Statement made on 04 April 2018 at 2:29pm

This is an application for review of a decision dated 18 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of Germany and Spain, born in December 1991. He was holding a Bridging A visa on the basis of an application for a partner visa. On 29 December 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant’s presence in Australia is or may be, or would or might be, a risk of the kind specified in s.116(1)(e) of the Act. The applicant provided his response to the NOICC on 8 January 2018 and his visa was cancelled on 18 January 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner and other witnesses nominated by the applicant. The applicant was represented in relation to the review by his registered migration agent. 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)(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.
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.
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 (Tien) 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…

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.

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Details

Case: [2018] AATA 1096
Decision Date: 4 April 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Bridging A visa (Subclass 010) was subject to cancellation. The applicant was facing criminal charges but had not been formally convicted. The applicant disputed the charges, and the Tribunal was satisfied that the applicant would comply with his bail conditions.

The central legal issue before the Tribunal was whether the grounds for visa cancellation under section 116(1)(e) of the *Migration Act 1958* (Cth) were met. This section pertains to circumstances where a visa holder has been charged with certain offences and is awaiting trial or sentencing.

The Tribunal reasoned that for the cancellation ground under section 116(1)(e) to be enlivened, the applicant must have been charged with a relevant offence. While the applicant had been charged, the Tribunal found that the specific requirements of the section were not satisfied in this instance, particularly in light of the applicant's dispute of the charges and the Tribunal's satisfaction regarding his compliance with bail conditions. Consequently, the Tribunal concluded that the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 010 (Bridging A) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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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 010 (Bridging A) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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