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remittal – charged with criminal offences – consent to decision without hearing – circumstances of offences – charges withdrawn after change of evidence by complainant – new relationship, marriage and child – supporting statements provided – decision under review set aside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

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
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.
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.
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)
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.
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.
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
On 19 April 2018 the applicant appealed the decision 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.

Continue reading Teh (Migration)

Details

AGLC: Teh (Migration) [2023] AATA 1854
Case: [2023] AATA 1854
Decision Date: 27 March 2023

CaseChat Overview and Summary

This matter concerned the review of a decision by the Minister for Immigration and Border Protection to cancel Mr Eng Hong Teh's Subclass 572 Vocational Education and Training Sector visa. The cancellation was based on section 116(1)(e)(i) of the *Migration Act 1958* (Cth), with the delegate being satisfied that Mr Teh's presence in Australia posed a risk to the health, safety, or good order of the Australian community, specifically women. Mr Teh had been charged with sexual intercourse without consent and assault occasioning actual bodily harm in relation to an incident with his then-girlfriend in June 2016.

The legal issues before the Tribunal were whether the ground for cancellation under s 116(1)(e)(i) of the Act was made out, and if so, whether the visa should be cancelled. This required the Tribunal to consider the circumstances of the alleged offences, the subsequent withdrawal of the charges, and any new information relevant to Mr Teh's character and risk to the community. The Federal Circuit and Family Court had previously remitted the matter back to the Tribunal, acknowledging that the original Tribunal had fallen into jurisdictional error by failing to properly engage with the separate elements of s 116(1)(e) and making a global finding.

The Tribunal noted that the criminal charges against Mr Teh were withdrawn after the complainant provided a statement indicating she had made the complaint to "teach him a lesson" and did not wish for the charges to proceed. Mr Teh conceded to slapping his ex-girlfriend and engaging in sexual touching, but claimed he desisted when it became clear she did not consent. Crucially, the Tribunal considered extensive new evidence submitted by Mr Teh, including a marriage certificate to a Ms A dated 20 August 2018, a birth certificate for their daughter born in April 2020, and a statutory declaration from Ms A detailing their relationship and asserting no family violence. A national police certificate dated 23 February 2023 confirmed no disclosable court outcomes against Mr Teh.

Given the withdrawal of the criminal charges, the subsequent marriage and birth of a child, the positive statutory declaration from his wife, and his clear Australian Federal Police check, the Tribunal concluded that the ground for cancellation under s 116(1)(e)(i) was not made out. Consequently, the Tribunal set aside the decision to cancel Mr Teh's visa.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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) 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. 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. 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 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.

Evidence

Evidence Before The Court

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 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 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 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 harmin relation to an incident alleged to have occurred on 27 June 2016. The alleged victim of these alleged offences was the applicant’s de facto partner, or as he described her, his girlfriend, at the time. 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. 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. 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.

Decision

Reasons for decision

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 The applicant provided the Tribunal with a copy of the primary decision. 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. 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 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 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. 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. On 8 March 2023 the Tribunal received the requested information mentioned in the above. 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 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.

Ratio Decidendi

Legal Principle Established

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