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TU) visa – Subclass 500 visa – Criminal History Check Certificate provided – offence of Affray has been Dismissed/withdrawn – ground for cancellation in s.116(1)(e) does not exist – decision under review set aside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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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

6. 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.

7. 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.

8. 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. 

9. 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)

10. 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

11. 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”.

12. 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

13. As noted earlier, 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].

14. It is not the role of the Tribunal to question the outcomes of the criminal Courts.  In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:

    [45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

    [46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…

15. The applicant has provided probative evidence that the matter in relation to the offence of Affray has been Dismissed/withdrawn.  He also provided a Criminal History Check Certificate dated 18 June 2021 indicating that there are “No Disclosable Court Outcomes”. In light of that evidence and in consideration of the evidence as whole, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) does not exist; there is no evidence before the Tribunal that the applicant has engaged in any incidents of concern, or that he has been charged with any offences, or that there are any outstanding matters against him.

16. For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) does not arise. On the evidence, the Tribunal is not satisfied that the applicant’s presence in Australia is or may be, or would or might be, a risk to the safety of an individual or individuals.

17. The Tribunal therefore concludes that the visa should not be cancelled.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

19. The Tribunal has no jurisdiction with respect to the other applicants.

    Antoinette Younes

    
    Senior Member