Reyes (Migration)

[2018] AATA 114

Reyes (Migration) [2018] AATA 114 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khelvin Viray Reyes

CASE NUMBER:  1724505

DIBP REFERENCE(S):  BCC2017/2475235

MEMBER:Mr S Norman

DATE:18 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 January 2018 at 3:01pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Subject to multiple charges

LEGISLATION
Migration Act 1958, s 48, 116(1)(i)-(ii), 116(3), 198, 362B

CASES
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 21 September 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act). The delegate cancelled the visa under s.116(1)(e)(i) & (ii) of the Act on the basis that inter alia the applicant’s presence may constitute a risk to the safety 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.

2. On 4 December 2017, the Tribunal sent the applicant (to the email address authorised for service) a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 18 January 2018. No response to the Tribunal’s hearing invitation letter was received. Two SMS (hearing reminder) texts were sent to the applicant’s claimed mobile phone (11/01/2018 & 170/01/2018 – the first SMS was noted as “Delivery failed”). Again no response was received. In the Tribunal letter of 4 December 2017, the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

3. The Tribunal was subsequently advised that the applicant had departed Australia on 1 December 2017 (though this advice was only received after the hearing invitation letter was issued).

4. That being said, the applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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)(i) & (ii) of the Act. 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?

7. 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.

8. 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.

9. The applicant was granted a TU-Student (Temporary) subclass 500 visa on 10 April 2017. Following the grant of this visa, the applicant had travelled on the following occasions:

   ·Departed - 1 May 2017

   Arrived – 10 May 2017

   ·Departed – 19 June 2017

   Arrived – 30 June 2017

10. The Department subsequently received evidence that the applicant was charged by the NSW Police with the following offences:

    ·    4 July 2017: 

    -    [Criminal offence 1].

    ·    5 July 2017: 

    -    [details deleted]; and

    -    [Criminal offence 2].

    ·    10 July 2017: 

    -    [details deleted]; and

    -    [Criminal offence 3].

11. [A court order] naming the applicant as the person of interest [was] finalised on 14 July 2017. At the time of the delegate’s decision the order was [active]. The charges against the applicant are [serious].

12. On 18 August 2017 the, the applicant was issued a Notice of an Intention to Consider Cancellation (NOICC) of his Student visa. The NOICC contained the information referred to above. By letter of 24 August 2017, the applicant responded to the NOICC. [Details deleted]. The applicant had said:

    [Paragraph deleted].

13. The fact the applicant had been charged with multiple offences on different days, apparently breaching [the order] on two separate occasions [is] evidence that the applicant’s presence may be a risk to the safety of the Australian community and to the safety of an individual.

14. Notwithstanding the applicant’s denial, based on the evidence before the Tribunal, I am satisfied that the ground for cancellation in s.116(1)(e)(i) & (ii) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

16. The applicant had said that he was ‘very [foolish]. He had learnt from his mistakes … He had reported daily to the Kings Cross Police as part of his bail conditions’. He said that ‘apart from the impact on him of being unable to apply to remain in Australia, these events will also impact his mother and sister in Manila, who he had been supporting financially since his father abandoned them”. The applicant went on to say that he ‘personally admits and takes full responsibility for his previous actions. He knows now that by doing so he has placed himself and his visa in jeopardy. He will not do anything which will cause any further damage or harm to the victim … or his family’. The applicant also said that if his ‘Student visa is cancelled and he is denied the opportunity to apply for a Bridging visa, he will be forced to leave Australia and in doing so be forced to breach his bail conditions to report daily to the Kings Cross Police prior to his case being heard in court’. He then said if his Student visa is cancelled and he is denied the opportunity to obtain a Bridging visa, he will also be denied the opportunity to put his case before a magistrate.  

17. [Paragraph deleted].

18. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant was granted a TU-Student (Temporary) subclass 500 visa on 10 April 2017, and this visa was valid until 30 September 2019. The purpose of this visa was to allow a non-citizen to remain in Australia for the purposes of study. After arriving in Australia, the applicant had completed one registered course of study and had cancelled six registered courses of study. However he was studying for a Bachelor of Fashion and Business at the Holmes Institute (York Street). The applicant then explained that the breakup of his relationship meant that he could no longer afford to pay the fees to continue his study for a Bachelor of Fashion and Business. The Tribunal accepts the applicant initially intended to study in Australia, but notes that he now does not believe he can afford to do so.

19. Regarding the extent of the applicant’s compliance with any conditions to which his visa was granted, apart from the evidence provided herein, the Tribunal is not aware of any other conditions not complied with by the applicant.

20. Regarding the degree of hardship that may be caused to the applicant or his family if the visa is cancelled, the applicant had said (words to the effect) that if his visa is cancelled, he would not be able to continue to assist his family, who had been abandoned by their father. If his visa is cancelled, the Tribunal accepts the applicant and his family may be subject to some financial hardship. If his visa is cancelled the applicant also believed he would not be able to defend himself in court in Australia – though as stated above, the Tribunal notes the applicant had now departed Australia.

21. Regarding the circumstances which gave rise to the ground for cancellation, as noted above the applicant is subject to multiple [charges]. As did the delegate, based on the evidence, I am not satisfied his response [details deleted].

22. Regarding the applicant’s behaviour towards the Department, based on the evidence before the Tribunal I am not satisfied the applicant has been uncooperative with the Department or the Tribunal.

23. Regarding whether any other person’s visa would be cancelled if the applicant’s visa is cancelled, the Tribunal understands there are no dependent visa holders whose visa would be cancelled.

24. Regarding whether there are any mandatory legal consequences if the applicant’s visa is cancelled, if the visa is cancelled the applicant would become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, the applicant is not subject to indefinite detention. If the applicant’s visa is cancelled he would be subject to s.48 of the Act, meaning he would have limited options to apply for further visas in Australia. He would also be subject to Public Interest Criterion 4013. However, these are standard legal consequences and as did the delegate, the Tribunal does not believe it is unreasonable (in this case) that the applicant is subject to such administrative sanctions. Be that as it may, the Tribunal has considered this in its decision.

25. Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, based on the evidence before the Tribunal I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

26. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Mr S Norman
    Member