Sah (Migration)

[2019] AATA 3212

Sah (Migration) [2019] AATA 3212 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Master Bikram Pratap Sah

CASE NUMBER:  1710311

HOME AFFAIRS REFERENCE(S):          BCC2017/492264

MEMBER:Justin Owen

DATE:8 March 2019

PLACE OF DECISION:  Sydney

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 08 March 2019 at 12:29pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) visa – risk to the health or safety of an individual – applicant charged with domestic violence related assault – charges withdrawn by the Police – decision under review set aside

LEGISLATION

Migration Act 1958, 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 8 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was charged on 5 February 2017 with the offences of common assault; assault occasioning actual bodily harm domestic violence related; and unlawfully obtained goods (personal custody). The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate considered that given the nature of the alleged offences, particularly the charges involving assault and assault causing bodily harm, and the circumstances of the case, and the fact the prosecuting authorities concluded there was a basis to bring charges against the applicant 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. The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Manish Timilsina, who is the applicant's former flatmate.   The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. At the hearing the Tribunal noted that an s375A certificate had been placed on the file on the purported basis that disclosure of the material would be contrary to the public interest because the folios in question contained third party information from Police and the Department did not have the authorisation to release them.  The Tribunal determined the certificate was invalid.  The Tribunal noted the folios were the Police Fact Sheets related to the applicant’s charges and his Court Attendance Notices – all of which would have been supplied to him and his legal representative.  The Tribunal noted the folios also included a small number of administrative forms from the Police and the Department relating to his cancellation.  The Tribunal noted that the applicant already had access to the bulk of these folios and released them with the names and details of any officials redacted where appropriate. The applicant did not make any submissions on the matter.   

6. 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

7. 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.

   Does the ground for cancellation exist?

8. 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].

9. 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.

10. At the hearing the Tribunal discussed with the applicant the circumstances of the charges.  The applicant talked about how he had been living at a share household with a number of other students.  He said on the evening of 4 February 2017 he had been studying for an upcoming examination with a number of other students.  He said they finished studying at 1am and had a few beers before retiring around 4am.  The applicant stated he was woken around 6.30am/7am due to a commotion which was related to the state and cleanliness of the house.  The commotion led to a physical altercation between a number of parties.  The applicant claimed he was trying to break up the physical altercation.  At this point the incident occurred for which he was charged with the assault charges.  The applicant was subsequently arrested by the NSW Police and taken to the station.  He later that day received Police Bail. 

11. The Tribunal spent some time ascertaining just what was the result of the charges.  The applicant advised the Tribunal he had pleaded not guilty to the assault charges and had not been convicted.  The Tribunal asked the applicant to provide the Tribunal with the Advice of Court Result from the Local Court (T1, Folio 30-31).  The applicant provided the Tribunal with the Result and a submission on 1 March 2019. 

12. The Local Court dealt with the charges on 26 July 2017.  The Tribunal notes that the charge of common assault was withdrawn by the Police and dismissed by the Court. 

13. The Tribunal notes that the charge of assault occasioning actual bodily harm was withdrawn by the Police and dismissed by the Court. 

14. The Tribunal notes that the application for an Apprehended Domestic Violence Order that the NSW Police lodged on behalf of a party alleging the assault was withdrawn and the summons dismissed.

15. The Tribunal notes that the applicant was found guilty of the charge of goods in personal custody suspected of being stolen. 

16. In relation to the charge of unlawfully obtained goods (personal custody) the Tribunal notes that the applicant was convicted after pleading guilty of the offence.  The applicant in his oral testimony continues to claim he found the wallet in question on the day prior to the charges and it was his intention to return the wallet.

17. The Tribunal does not on balance consider the applicant’s conviction in relation to the wallet, on the evidence before it, provides a ground under s116(1)(e). The Tribunal notes that no conviction was recorded by the Local Court in relation to the offence. The applicant was directed to enter into a Good Behaviour Bond for 6 months pursuant to section 10(1)(b) of the Crimes Act (Sentencing Procedure) 1900. The applicant fully complied with the good behaviour bond over a year ago.  The Tribunal notes that the applicant has not had any transgressions with the Police previous to the charges of 5 February 2017 and has not had any since.

18. The Tribunal notes that all the charges involving violence have been withdrawn and dismissed.  The Apprehended Domestic Violence Order was withdrawn.  The Tribunal accepts that the charges involving the commitment of acts of violence were of a serious nature and the applicant’s continued presence in Australia could or may have been a risk to the safety of the Australian community.  The Tribunal notes that all charges pertaining to the alleged assault however have been withdrawn. There is no evidence before the Tribunal for it to accept that the applicant’s presence in Australia is or may be a risk to the safety of the Australian community.

19. The Tribunal has considered all the evidence in this case including the detailed oral testimony of the applicant and his witness.  The Tribunal notes the adverse impact the cancellation of the Student visa has had upon the applicant and notes he has nevertheless remain enrolled (with the requisite approval) and continued his studies whilst concerned about his ability to complete his studies due to the cancellation. 

20. The Tribunal finds that the charges which it considered provided the grounds – the charges of assault; assault occasioning actual bodily harm as well as the application for an apprehended domestic violence order - for the cancellation of the applicant’s visa have all been withdrawn and dismissed. In the Tribunal’s opinion, it follows that the Tribunal finds the grounds for cancellation of the applicant’s visa under s116(1)(e) no longer exist.

21. The Tribunal has taken into account that the applicant was found guilty of the charge of having goods in personal custody suspected of being stolen.  The Tribunal notes that the Court decided not to record a conviction.  The Tribunal notes that the applicant complied with his Good Behaviour Bond and has not had any further adverse interaction with the Police a year later.  The Tribunal cannot accept that on the basis of being found guilty of this charge alone, the applicant’s presence poses a risk to the safety of the Australian community, a section of the Australian community or an individual/s.                  

22. For these reasons, 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

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

    Justin Owen
    Senior Member