Tran (Migration)

[2021] AATA 298

Tran (Migration) [2021] AATA 298 (7 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hung Dat Tran

CASE NUMBER:  2003287

HOME AFFAIRS REFERENCE(S):          BCC2019/6527404

MEMBER:Michael Ison

DATE:7 January 2021

PLACE OF DECISION:  Melbourne

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 07 January 2021 at 3:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to community – charged with criminal offences – charges withdrawn or dismissed – discretion to cancel visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 360(2)(a)

CASE
Gong v MIBP [2016] FCCA 561

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 17 February 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 applicant is Mr Hung Dat Tran who is a 27 year old Vietnamese national. Mr Tran is referred to as the applicant in these reasons.

3. The applicant provided the Tribunal with a copy of the primary decision made by a delegate of the Minister. 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 [two offences] in New South Wales and a third offence for failing to attend court when required.

4. In the delegate’s view the initial two charges meant the presence of the applicant in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

5. The delegate went on to consider the considerations relevant to whether the applicant’s visa should be cancelled or not and found in the applicant’s circumstances those considerations overall weighed in favour rather than against the cancellation of the applicant’s visa. The delegate gave significant weight in favour of cancelling the applicant’s visa to the consideration of [the circumstances in which the ground for cancellation arose].

6. [Details deleted]

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

8. The applicant was represented in relation to the review by his registered migration agent and practising lawyer, Mr Derrick Pham of Pham Migration Services.

9. The applicant applied to the Tribunal to review the decision of the delegate on 20 February 2020. The applicant’s review was allocated to the Tribunal as presently constituted on 10 December 2020.

10. On 21 December 2020 the Tribunal invited the applicant to appear before the Tribunal on 14 January 2021 to give evidence and present arguments.

11. The Tribunal’s invitation to that hearing stated there was information on the Department file indicating the criminal charges filed against the applicant had been withdrawn and if that was the case and official documents were provided confirming that outcome, the Tribunal may be able to reach a decision in the applicant’s favour without conducting a hearing.

12. The Tribunal received a submission from the applicant’s representative on 25 December 2020 which included the following documents:

    ·Two page written submission from the applicant’s representative;

    ·Four page document from the Local Courts of New South Wales dated 10 September 2020 and titled ‘Advice of Court Result’ that confirmed two charges against the applicant had been withdrawn and a third charge was dismissed by the Court on 10 September 2020; and

    ·National Police Certificate dated 14 October 2020 stating there are no disclosable outcomes in relation to the applicant.

13. Section 360(2)(a) of the Act provides that the Tribunal does not have to invite the applicant to appear before it to give evidence and present arguments if the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it. Having read the documents submitted by the applicant’s representative on 25 December 2020 the Tribunal is satisfied that it should decide the review in the applicant’s favour and has cancelled the hearing scheduled for 14 January 2021.

14. 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

15. 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

16. 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].

17. At the time of the delegate’s decision the applicant was charged with the following criminal offences in New South Wales:

    ·[details deleted] (two charges); and

    ·Fail to appear in accordance with a bail acknowledgement.

18. [Details deleted]

19. The Tribunal accepts the evidence before it that on 10 September 2020 the Local Courts of New South Wales accepted the withdrawal by the prosecuting authorities of [the two charges filed against the applicant].

20. The Tribunal also accepts the evidence before it that on 10 September 2020 the Local Courts of New South Wales dismissed the charge filed against the applicant of failing to appear in court in accordance with his bail acknowledgement.

21. Further, the Tribunal also accepts the evidence before it that there are no criminal charges filed against the applicant currently pending before the courts and that there have been no criminal convictions or findings of guilt recorded against the applicant in Australia.

22. At the time of this decision there have been no adverse criminal outcomes against the applicant and there are no criminal matters involving the applicant before the courts. The Tribunal notes the applicant made specific admissions during his interview with New South Wales Police. The Tribunal is not satisfied based on those admissions alone 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.

23. Since being charged in December 2019 with the first two criminal offences the applicant has demonstrated he has subsequently learnt about what [behaviour] is and is not [legally] appropriate in Australia and he has also leant the potential consequences for his status as a visa holder in Australia that can flow from being charged with or found guilty of criminal offences.  

24. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

    Decision

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

    Michael Ison
    Senior Member