Spencer (Migration) - [2019] AATA 905

Spencer (Migration) [2019] AATA 905 (4 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Samuel David Spencer
CASE NUMBER:  1820704
HOME AFFAIRS REFERENCE(S):           BCC2018/1729438
MEMBER:Kira Raif
DATE:4 February 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 010 (Bridging A) visa.
Statement made on 04 February 2019 at 2:16pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – risk to safety of Australian community or individual – a number of criminal charges – no convictions recorded – low scale of offending – paid fines – behaviour restrictions were not imposed by Australian court – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 12 July 2018 made by a delegate of the Minister for Home Affairs 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 the UK born in April 1990. He was last granted a Bridging A visa on 27 November 2017. On 7 June 2018 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 and his visa was cancelled on 12 July 2018. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 4 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer. 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 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…

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: [2019] AATA 905
Decision Date: 4 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Bridging A (Class WA) visa, Subclass 010, was subject to cancellation. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the *Migration Act 1958* (Cth) were met.

The primary legal issue before the Tribunal was to determine if the applicant's conduct, specifically a number of criminal charges laid against them, posed a risk to the safety of the Australian community or an individual, thereby justifying the cancellation of their visa. The Tribunal was required to assess the seriousness of the offending, the outcomes of the charges, and whether any behavioural restrictions had been imposed by an Australian court.

In its reasoning, the Tribunal found that while criminal charges had been laid, no convictions were recorded, and the offending was of a low scale, with fines having been paid. Crucially, no behaviour restrictions were imposed by an Australian court. Based on these findings, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(e) was established. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's 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

Overall, 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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