Tanui (Migration)

[2021] AATA 3102

Tanui (Migration) [2021] AATA 3102 (8 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lawi Kiplagat Tanui

CASE NUMBER:  2006506

HOME AFFAIRS REFERENCE(S):          BCC2019/6474354

MEMBER:Antoinette Younes

DATE:8 July 2021

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 8 July 2021 at 6:51 PM

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant has been charged with an offence – no criminal conviction in respect of this case –offence has been Dismissed/withdrawn – ground for cancellation in s.116(1)(e) does not exist – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth)

CASES
Gong v MIBP [2016] FCCA 561
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s 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 NSW. 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 8 July 2021 to give evidence and present arguments. Ms Mercy Kiprop, the applicant’s spouse gave evidence in support of the applicant.

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

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.

   Does the ground for cancellation exist?

   Section 116(1)(e) - risk to Australian community or individual

7. 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].

8. The delegate’s decision record, a copy of which the applicant provided to the Tribunal indicates that on 3 December 2019, the applicant was charged with the offence of Inflict Actual Bodily Harm with Intent to have Sexual Intercourse. The NSW Police Facts Sheet details the circumstances surrounding the charge.  In summary, the charges related to allegations that the applicant had attempted to engage in sexual intercourse with his housemate, without her consent.

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC/Notice)

9. On 21 February 2020, the Department sent to the applicant a NOITCC to which he did not respond.

   Documents received by the Tribunal

10. The applicant provided to the Tribunal several documents including a Disclosable Court Outcome dated 22 June 2020 indicating that there are “No Disclosable Court Outcomes”.  He also provided a letter dated 5 July 2021 from NSW Legal Aid addressed to the applicant stating among other things, that:

    I confirm that following consideration of the evidence, the Office of the Director of Public Prosecutions of NSW (the “ODPP”), the official prosecution agency in the State of New South Wales, made a decision that the charge against you should not proceed, and would be withdrawn…I confirm that on 26 March 2020, at Central Local Court, the charge was formally withdrawn by the ODPP, and dismissed by the court. Your criminal case was finalised on that date…I confirm that you have no criminal conviction in respect of this case.

11. During the hearing, the applicant confirmed that the charge of Inflict Actual Bodily Harm with Intent to have Sexual Intercourse has been dismissed and that there is nothing outstanding.  He confirmed that there are no outstanding matters against him.

    Does the ground for cancellation exist?

    s.116(1)(e) - risk to Australian community or individual

12. 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].

13. 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 criminal procedures are matters for the Courts and not for an administrative tribunal. The Tribunal must accept the processes of the criminal Courts, including decisions to dismiss.

14. The applicant has provided probative evidence that the matter in relation to the charge of Inflict Actual Bodily Harm with Intent to have Sexual Intercourse has been dismissed.  He also provided a National Police Certificate 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 there are any outstanding matters against him.

15. In essence and for the above reasons, 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 the Australian community or a segment of the Australian community, or the safety of an individual or individuals. 

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

    DECISION

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

    Antoinette Younes

    
    Senior Member