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

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).
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.
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.
The applicant was represented in relation to the review by his registered migration agent.
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)(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

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…

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 Walia (Migration)

Details

AGLC: Walia (Migration) [2019] AATA 2502
Case: [2019] AATA 2502
Decision Date: 26 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by Mr Walia against a decision of the Migration Review Tribunal to affirm the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573. The cancellation was based on Mr Walia having been convicted of an offence.

The primary legal issue before the Federal Circuit Court was whether the Migration Review Tribunal had erred in law by failing to consider, or adequately consider, the fact that the charges against Mr Walia had been struck out on appeal. The court was required to determine if this subsequent development altered the legal basis for the visa cancellation and the Tribunal's subsequent decision.

The court found that the Tribunal had erred in law by failing to consider the impact of the charges being struck out. The Tribunal's decision was based on the premise of a conviction, and once that conviction was nullified by the striking out of the charges, the factual foundation for the cancellation was removed. The court reasoned that the Tribunal had no other relevant grounds upon which to affirm the cancellation, and therefore, its decision was vitiated by an error of law.

The court set aside the decision of the Migration Review Tribunal and remitted the matter to the Tribunal to be heard and determined according to law.

Orders