Teh (Migration)

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The Tribunal noted that the criminal charges against Mr Teh were withdrawn after the complainant provided a statement indicating she had made the complaint to "teach him a lesson" and did not wish for the charges to proceed.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.