Teh (Migration)

[2023] AATA 1854

Teh (Migration) [2023] AATA 1854 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eng Hong Teh

REPRESENTATIVE:  Ms Chenzi Yang, Goodwin & Co Lawyers

CASE NUMBER:  2209028

HOME AFFAIRS REFERENCE(S):          BCC2016/2202300

MEMBER:Michael Ison

DATE:27 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 27 March 2023 at 11:40am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Federal Circuit and Family Court remittal – charged with criminal offences – consent to decision without hearing – circumstances of offences – charges withdrawn after change of evidence by complainant – new relationship, marriage and child – supporting statements provided – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(ii), 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 8, conditions 8101, 8506

CASES
Gong v MIBP [2016] FCCA 561
MIBP v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 October 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr Eng Hong Teh, who is a 39-year-old Malaysian national. Mr Teh is referred to as the applicant in these reasons for decision.

3. The applicant first arrived in Australia on 27 November 2015 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa that was valid to 22 February 2016.

4. On 9 February 2016 the applicant applied for a Student (Class TU) (Subclass 572) visa and it was granted on 22 February 2016. The applicant’s Student visa ceased on 5 October 2016 when it was cancelled under s 116(1)(e)(i) of the Act.

   First review before the Tribunal (differently constituted)

5. On 10 October 2016 the applicant lodged an application for review of the cancellation of his Student visa at the Tribunal. The application for review was known as Tribunal review number 1616737.

6. On 3 March 2017 the applicant was granted a Bridging E (Subclass 050) visa that was valid to 27 April 2018, with conditions 8104 (Work Limitation), 8401 (Report As Directed), 8506 (Notify New Address) and 8510 (Show Valid Passport) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached.

7. The applicant’s review application was heard by the Tribunal, differently constituted, on 2 March 2018. On 23 March 2018 the Tribunal affirmed the decision to cancel the applicant’s Student visa.  

   Federal Circuit Court remittal

8. On 19 April 2018 the applicant appealed the decision of the Tribunal as previously constituted to the Federal Circuit Court of Australia (as it was then known). On 16 June 2022 the Federal Circuit and Family Court of Australia, with the Minister’s consent, quashed the decision of the Tribunal as previously constituted and remitted the applicant's application back to the Tribunal to be reviewed according to law by ordering:

   The First Respondent concedes that [the Tribunal] has fallen into jurisdictional error as it failed to ask itself the correct question under s 116(1)(e) of the Migration Act 1958 (Cth) (Act). The [Tribunal] did not explain whether its finding was that there would or might be a risk to the 'health', the 'safety', or the 'good order' of 'the Australian community' or a 'segment of the Australian community', or 'an individual'.

   Instead, the [Tribunal] made a global finding at [25]. The First Respondent accepts that the [Tribunal] conflated s 116(1)(e)(i) and (ii) of the Act and in doing so failed to properly engage with the separate elements of s 116(1)(e) as it was required to do. Such an error was material as it could have deprived the applicant of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421[1]

   [1] Notes from the Orders of Judge Egan of the Federal Circuit Court and Family Court of Australia made at Sydney on 16 June 2022.

9. On 27 April 2018 the applicant was granted a second Bridging E visa, which the applicant continues to hold at the time of this decision. The applicant’s second Bridging E visa has conditions 8101 (No Work), 8207 (No Study) and 8506 (Notify New Address) attached from Schedule 8 of the Regulations.

   The primary decision of the delegate

10. The applicant provided the Tribunal with a copy of the primary decision.

11. The delegate cancelled the applicant’s Student visa under s 116(1)(e)(i) of the Act on the basis that the applicant had been charged with family violence related criminal offences of a sexual and violent nature which the delegate found was a risk to the health, safety or good order of the Australian community or a segment of Australian community. The relevant segment of the Australian community at risk in the delegate’s assessment was women.

12. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Constitution to the Tribunal as presently constituted

13. The applicant’s remitted application for review was constituted to the Tribunal as presently constituted on 12 October 2022, four months after it had been remitted back to the Tribunal.

    Tribunal hearing for 22 March 2023 cancelled by the Tribunal

14. On 12 January 2023 the Tribunal sent a letter inviting the applicant to attend a hearing before it on 22 March 2023 to give evidence and present arguments relating to the issues arising in the applicant’s case. In that letter of invitation, the Tribunal requested detailed and specific updated and additional evidence and information from the applicant.

15. On 16 February 2023 the Tribunal wrote the applicant via the representative to request the applicant to provide evidence of marriage, evidence of the applicant's paternity of any child, an updated national police clearance check for the applicant and a statutory declaration from his wife about their relationship, including whether there has been any family violence. In the letter, the Tribunal also indicated if this information is received before the Tribunal hearing it may be sufficient to enable the Presiding Member to make a decision on the papers.

16. On 8 March 2023 the Tribunal received the requested information mentioned in the above.

17. On 9 March 2023 the Tribunal wrote to the representative advising that the information received on 8 March 2023 is sufficient to enable the Presiding Member to make a decision on the papers. This meant the hearing scheduled for 22 March 2023 was not required.

    Submissions

18. On 8 March 2023 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·a two-page cover letter from the representative with a list of supporting documents dated 7 March 2023;

    ·a certificate of marriage issued by a Mr Anthony Sim, civil marriage celebrant, showing the applicant and [Ms A] were married according to Australian law on 20 August 2018 in New South Wales;

    ·a marriage certificate of the applicant and [Ms A], issued by the Registry of Births, Deaths and Marriages of New South Wales, dated 20 August 2018;

    ·a birth certificate for the applicant’s daughter [Miss B], issued by the Registry of Births, Deaths and Marriages of New South Wales, dated 14 May 2020, showing she was born on [date deleted] April 2020 with the applicant listed as her father;

    ·a two-page statutory declaration declared by the applicant’s wife [Ms A] on 7 March 2023;

    ·a three-page statutory declaration declared by [Ms A] on 16 March 2018;

    ·an eight-page statutory declaration declared by [Ms C] (the applicant’s ex-fiancé) on 7 February 2017;

    ·a copy of the biometric pages of the passport of [Ms C], date of issue: 22 October 2015 and date of expiry: 15 March 2021;

    ·a digital national police certificate from the Australian Federal Police, dated 23 February 2023, certifying that there are no disclosable court outcomes recorded against the applicant as at 20 February 2023;

    ·6 photos showing the applicant with his daughter;

    ·screen shots of the applicant’s blood donation history from Australian Red Cross showing the applicant has made 14 donations from 19 February 2020 to 14 December 2022;

    ·a one-page supporting letter from the applicant’s ex-employer [Mr D], General Manager of [name] Restaurant, dated 20 January 2023;

    ·a one-page statement from the applicant’s brother-in-law [Mr E], dated 3 February 2023;

    ·a one-page statement from the applicant’s friend [Ms F], dated 28 January 2023;

    ·a one-page statement from the applicant’s friend [Mr G], dated 31 January 2023;

    ·a one-page statement from the applicant’s brother [Mr H], dated 5 February 2023;

    ·a one-page statement from the applicant’s sister [Ms I], dated 3 February 2023; and

    ·a one-page statement from the applicant’s previous colleague [Ms J], dated 12 February 2023.

19. The Tribunal also received various other correspondence from the applicant’s representative in relation to arranging the applicant’s participation in this review and other administrative matters.

    Tribunal decision

20. Section 360(2) of the Act provides that the Tribunal does not have to invite the applicant to a hearing if:

    (a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it.

21. The Tribunal has had regard to the material before it and considers that this review should be decided in the applicant’s favour on the basis of that material.

22. 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

23. 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). 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?

    s.116(1)(e)(i) - risk to Australian community or a segment of the Australian community

24. A visa may be cancelled under s 116(1)(e)(i) 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. 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].

    March 2018 decision of the Tribunal as previously constituted

25. On 28 June 2016 the applicant was charged in New South Wales with:

    ·One charge of sexual intercourse without consent; and

    ·One charge of assault occasioning actual bodily harm

    in relation to an incident alleged to have occurred on 27 June 2016.

26. The alleged victim of these alleged offences was the applicant’s de facto partner, or as he described her, his girlfriend, at the time.

27. The Tribunal as previously constituted noted that the criminal charges were subsequently withdrawn on 24 November 2016 as the applicant’s ex-girlfriend provided a subsequent statement to New South Wales police that she made the complaint against the applicant on 28 June 2016 only to teach him a lesson and she expected the applicant would only be warned about his behaviour not charged with criminal offences, she did not want the charges to proceed and changed her evidence in material terms.

28. In the applicant’s oral evidence to the Tribunal as previously constituted the applicant conceded he had slapped his ex-girlfriend on 27 June 2016 and had engaged in touching her sexually after slapping her, but claimed he thought this was consensual and when she made it clear she did not consent he desisted.

29. The evidence before the Tribunal as previously constituted included a statutory declaration declared by the applicant’s ex-girlfriend on 7 February 2017 in which she sets out in detail the history of their relationship, the then recent history of her prior relationships and what happened on 27 June 2016. In that statutory declaration the declarant states she and the applicant were engaged to be married and she resumed living with the applicant after the criminal charges were withdrawn (in November 2016) from 24 December 2016 to the dated of the declaration.

30. The Tribunal as previously constituted reviewed the transcripts of police interviews with the applicant’s ex-girlfriend, a friend she reported the incident to (and who reported it to police) and the applicant and found that the applicant in his interview with police admitted slapping his ex-girlfriend and conceded he had assumed she consented to the sexual touching he initiated because they usually had sex after arguing.

31. This evidence caused the Tribunal as previously constituted to find that the narrative of the incident on 27 June 2016 between the applicant and his ex-girlfriend as presented by the applicant was neither accurate nor reliable, the applicant had assaulted his ex-girlfriend by slapping her and therefore has a history of violence against women such that:

    based on the information before the Tribunal and the findings made herein, I am satisfied the applicant’s presence in Australia, 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.

32. The Tribunal as previously constituted then went on to consider the relevant discretionary considerations and decided the discretionary considerations that weighed in support of the cancellation of the applicant’s visa outweighed those discretionary consideration that weigh against the cancellation of the applicant’s visa. On that basis, the Tribunal as previously constituted affirmed the decision of the delegate that was under review, which was to cancel the applicant’s Student visa.

    Significant developments since the Tribunal’s 2018 decision

33. It is now five years since the Tribunal as previously constituted made its decision and nearly seven years since the incident that led to criminal charges being filed against the applicant occurred. The Tribunal has received evidence, which it accepts, that in the intervening five years the following significant developments have occurred in the applicant’s life:

    ·The criminal charges filed against him in June 2016 and withdrawn in November 2016 have not been reinstated;

    ·The applicant has not had any other reportable criminal matter;

    ·The applicant married [Ms A] on 20 August 2018;

    ·[Ms A] was aware of the previous criminal charges filed against the applicant including reading the police brief relating to those charges;

    ·[Ms A] provided a statutory declaration declared on 16 March 2018 in support of the applicant during the review before the Tribunal as previously constituted;

    ·The applicant and [Ms A] have a daughter who was born in April 2020;

    ·[Ms A] attests to the role of the applicant as “a good father and a devoted husband”, declares he is their daughter’s primary caregiver and in [Ms A]’s experience the applicant has not ever displayed any violent behaviour toward her, toward their daughter or toward any other person [Ms A] is aware of apart from the applicant’s ex-girlfriend in June 2016; and

    ·The applicant and [Ms A] have attended weekly bible classes with the Jehovah’s Witnesses for the past two years.

34. The applicant also provided statements from seven family and friends attesting to his good character, his role as a father to his and [Ms A]’s daughter, his role as [Ms A]’s husband and role in the local community.

35. At the time of this decision, the Tribunal is not satisfied that the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community, being women.

36. For these reasons, the Tribunal finds that the ground for cancellation of the applicant’s Student visa in s 116(1)(e)(i) does not exist at the time of this decision. It follows that the power to cancel the applicant’s visa does not arise.

    Conclusion

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Michael Ison
    Senior Member