Walia (Migration)

[2019] AATA 2502

Walia (Migration) [2019] AATA 2502 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daljit Singh Walia

CASE NUMBER:  1836346

HOME AFFAIRS REFERENCE(S):           BCC2018/4306499

MEMBER:Jason Pennell

DATE:26 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 26 March 2019 at 1.37pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – applicant had been convicted of an offence – government policy – appeal against his conviction – striking out the charges against the applicant – no other relevant grounds upon which the Tribunal can consider – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 109, 116, 119
Migration Regulations 1994 (Cth), r 2.43, Condition 8202

CASES

Krummrey v MIAC (2005) 147 FCR 557
Shi v MARA (2008) 235 CLR 286
SZBEL v MIMIA (2006) 228 CLR 152
Zhang v MIAC [2007] FMCA 1855

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the delegate was satisfied that the applicant had been convicted of an offence against the law of the Commonwealth, a State or Territory. 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 1 March 2019 to give evidence and present arguments. The proceeding was adjourned to 27 March 2019 for the purposes of allowing the applicant to have his appeal against his conviction heard and determined in the County Court of Victoria.

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

1. 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)(g). 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)(g) - prescribed ground

1. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

2. The applicant was granted a Higher Education Sector visa (‘the visa’) on 16 January 2015. The Department of Home Affairs subsequently received information that on 10 September 2018 that applicant was convicted in the Melbourne Magistrates Court of two counts of sexual assault. As a result by a Notice of Intention to Consider Cancellation (NOICC) dated 21 November the applicant was informed by the Department of Home Affairs that as he had been convicted of offences against the laws of the State his visa may be cancelled in accordance with r.2.43(1)(oa) under s.116(1)(g) of the Act. Accordingly the Department invited the applicant to make any comment on the grounds for cancellation and to give reasons as to why his visa should not be cancelled.

3. By a letter dated 4 December 2018 the applicant advised the Department that he had filed a Notice of Appeal against the conviction and sentence recorded at the Melbourne Magistrates Court on 10 September 2018. 

4. By a Notification of Cancellation under section 116 of the Migration Act dated 7 December 2019 the Department advised the applicant that having taken into account his responses to the NOICC his visa was cancelled under paragraph 116(1)(g) of the Act. The Department did not consider any other ground under s.116 of the Act in cancelling the applicant’s visa.

5. On 18 March 2019 His Honour Judge Dean of the Country Court of Victoria made orders setting aside the orders of the Magistrates Court and striking out the charges against the applicant.

6. When considering a decision to cancel a visa under s.116, it is not open to the Tribunal on review to consider if a visa could have been cancelled under a different power (for example s.109 of the Act). However, the Tribunal is not limited to the particular issues considered by the delegate.[1] For example, it has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a)[2] it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b).[3] The Court rejected the contention that the Tribunal was limited to the issues that had been raised in the s.119 notice of proposed cancellation.[4]

   [1] SZBEL v MIMIA (2006) 228 CLR 152.

   [2] (80% attendance requirement)

   [3] (academic result)

   [4] Zhang v MIAC [2007] FMCA 1855 (Cameron FM, 25 September 2007) at [16]-[18]. Note that the discussion of condition 8202(3)(b) is no longer reliable in light of the Full Court’s decision in Wen Bi Dai v MIAC (2007) 165 FCR 458.

7. In Krummrey v MIAC[5] the grounds for cancellation considered by both the delegate and the Tribunal were those in s.116(1)(a) and (b). However, the Full Federal Court accepted that it would (theoretically) have been open to the delegate, and on review the Tribunal, to have considered cancelling the visa in pursuant to s.116(1)(g) and r.2.43(1)(i). Their Honours observed that neither the delegate nor the Tribunal gave any consideration to those provisions and that it could not be known whether the Tribunal would have exercised its discretion to cancel in reliance on s.116(1)(g) in the same way as it purported to exercise its discretion under s.116(1)(a). The Court rejected the submission that the Tribunal was to be understood to have unwittingly exercised jurisdiction to which it did not direct its attention. It was not suggested that the Tribunal could not consider s.116 (1)(g) because the delegate did not do so and that issue was not expressly considered. Therefore, it appears that the Tribunal is not limited to the particular ground or grounds considered by the delegate, and/or those described in the s.119 notice.

   [5] (2005) 147 FCR 557.

8. A related issue is whether the Tribunal, when considering whether a ground for cancellation exists, is limited to consideration of the facts and circumstances as they existed at the time of the primary decision, or whether it is obliged to consider the facts and circumstances at the time of its own decision. As a general rule, unless there is some temporal element in the relevant legislation that confines the Tribunal’s consideration to the circumstances as they existed at the time of the primary decision, information about subsequent conduct and events will be relevant. To determine whether there is a temporal element of that kind, the precise nature of the decision under review must be closely considered.[6] In the case of cancellation decisions under s.116, the relevant time at which the facts are to be assessed on the review may depend on the precise terms upon which the visa was cancelled.

   [6] See Shi v MARA (2008) 235 CLR 286.

9. In this case, the applicant’s visa was cancelled under s.116(1)(g) on the basis of the orders made by the Magistrates Court on 10 September 2018. The orders on appeal, by which the order of the Magistrates Court were set aside and all charges stuck out, were made after the Department’s decision. The fact that the orders on appeal are central to the Departments decision to cancel the applicants visa, the relevant time for considering whether a ground for cancellation exists is at the time of the Tribunals own decision.  

10. While it appears to be open to the Tribunal to exercise its discretion to consider an alternative ground under s.116 of the Act, in circumstances were on appeal the Magistrates Courts orders were set aside and all charges stuck out there are no other relevant grounds upon which the Tribunal can consider under s.116 by which the visa may be cancelled.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) does not exist and as such the power to cancel the applicant’s visa does not arise. Accordingly, Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Jason Pennell
Senior Member