Xiao (Migration)

[2018] AATA 1284

Xiao (Migration) [2018] AATA 1284 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peiwen Xiao

CASE NUMBER:  1726552

HOME AFFAIRS REFERENCE(S):         BCC2017/3072239

MEMBER:Denis Dragovic

DATE:10 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 10 May 2018 at 2:48pm

CATCHWORDS
Migration – Cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – Whether the applicant is a risk to the health or safety of an individual or individuals – Cancellation of visa based on criminal charges – Charges later withdrawn – Grounds for cancellation no longer exist

LEGISLATION
Migration Act 1958, s 116(1)(e)(ii)

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant was charged with a number of offences. 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 10 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted in English.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

6. 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(e)(ii):

   (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (ii) the health or safety of an individual or individuals.

   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?

7. A visa may be cancelled under s.116(1)(e) 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; or the health or safety of an individual or individuals. 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].

8. The applicant was charged with a series of offences that I do not list in this decision record for the reason that between the cancellation of the visa by the Department and hearing of the case by the Tribunal they were withdrawn. There is no reason for the public record to reflect unproven accusations. The applicant provided in support of this outcome court orders dated 16 April 2018 (Tribunal file 55-58).

9. At the hearing I asked the applicant if he was associated with the men who were guilty of the crime to which he responded that he knew of them but was not associated in any way with them.

10. At the time the applicant appeared before the Tribunal the Department had released him from immigration detention and had granted him a new Bridging Visa E in effect making the application to review the cancellation a moot point. The applicant, though, wanted to pursue the case at the Tribunal for the reason that he did not want to have a cancelled visa on his record.

11. Considering that the charges which led to the applicant being detained and his visa cancelled were withdrawn and that the Department granted the applicant a new Bridging Visa and there being no reason to suspect that the applicant poses a risk to the victim of the crime I am satisfied that the applicant does not pose a risk to the health or safety of an individual or individuals.

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

    Decision

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Denis Dragovic
    Senior Member