Quispe Roque (Migration) - [2021] AATA 3108

Quispe Roque (Migration) [2021] AATA 3108 (6 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Oscar Jhimmy Quispe Roque
Mrs Trudy Gabriela Ricalde Cruz
Mr Thiago Said Quispe Ricalde
CASE NUMBER:  2004358
HOME AFFAIRS REFERENCE(S):          BCC2019/6527523
MEMBER:Antoinette Younes
DATE:6 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 6 July 2021 at 4:44 pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – Criminal History Check Certificate provided – offence of Affray has been Dismissed/withdrawn – ground for cancellation in s.116(1)(e) does not exist – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994 (Cth)
CASES
Gong v MIBP [2016] FCCA 561
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Tien & Ors v MIMA (1998) 89 FCR 80
Rani & Ors v MIMA (1997) 80 FCR 379
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 25 February 2020 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant has been charged with an offence in New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.
The applicants appeared before the Tribunal at 11:30 am on 6 July 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
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
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,…

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.

Continue reading Quispe Roque (Migration)

Details

AGLC: Quispe Roque (Migration) [2021] AATA 3108
Case: [2021] AATA 3108
Decision Date: 6 July 2021

CaseChat Overview and Summary

This matter concerned an application by Mr. Quispe Roque for review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the ground specified in section 116(1)(e) of the *Migration Act 1958* (Cth), which permits the Minister to cancel a visa if the holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community. The applicant had been arrested and charged with the offence of Affray, stemming from an incident at Auburn railway station.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out. This required the Tribunal to consider the applicant's criminal history, specifically the charge of Affray, and determine if his presence in Australia posed a risk to the community. The Tribunal also had to consider the applicant's response to the notice of intention to cancel his visa and any evidence he provided to demonstrate he did not pose such a risk.

The Tribunal reasoned that while the applicant had been arrested and charged with Affray, the evidence presented indicated that this charge had been dismissed or withdrawn by the court. Furthermore, a Criminal History Check Certificate confirmed there were no disclosable court outcomes. The applicant also confirmed during the hearing that the charge was dismissed and nothing was outstanding. Given that the alleged offence did not result in a conviction or any ongoing legal proceedings, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not established.

Consequently, the Tribunal set aside the decision to cancel Mr. Quispe Roque's Subclass 500 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. Section 116 Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; (2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled. (3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. The delegate’s decision record, a copy of which the applicant provided to the Tribunal indicates that the New South Wales Police advised the Department that on 27 July 2019, the applicant was arrested and charged with the offence of Affray. The Police also provided details concerning the circumstances surrounding the charges. In summary, the charges relate to an incident that occurred on 27 July 2019 at Auburn railway station where the applicant and a co-accused had an interaction with a male (Mr X) not known to them which led to a physical altercation, resulting in injuries to Mr X. Police attended Auburn railway station and arrested the applicant who was noted to be heavily intoxicated. The applicant was later interviewed, and he made a partial admission that he and the co-accused only defended themselves. He believed the force he used was reasonable in the context of self-defence. NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC/Notice) On 4 February 2020, the Department sent to the applicant a NOITCC to which he responded on 7 and 11 February 2020. The applicant indicated that he denies the allegations as set out in the Notice. He stated that he is a person of good character who does not pose a risk to the safety of any member of the Australian community. Documents received by the Tribunal The applicant provided to the Tribunal several documents including Advice of Court Result dated 10 March 2020 from Burwood Local Court noting that the matter in relation to the offence of Affray has been Dismissed/withdrawn. The applicant also provided a Criminal History Check Certificate dated 18 June 2021 indicating that there are “No Disclosable Court Outcomes”. During the hearing, the applicant confirmed that the charge of Affray has been dismissed and that there is nothing outstanding. He did apologise and expressed remorse for his conduct, albeit recognising that the matter has been Dismissed/withdrawn.Does the ground for cancellation exist?s.116(1)(e) - risk to Australian community or individual

Decision

Reasons for decision

The Tribunal therefore concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicants.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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