Tribunal: Deputy President Jan Redfern
A delegate of the Minister for Immigration and Border Protection cancelled the applicant’s Student visa. On 3 April 2018, the Administrative Appeals Tribunal set aside the decision and replaced it with one not to cancel the visa.
Under subsection 116(1)(e) of the Migration Act, the Minister (or their delegate) may cancel a visa if 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.
The applicant was a 30 year old Chinese citizen who first entered Australia in May 2013 on a Student visa to undertake a Bachelor of Nursing. On completion of the Bachelor’s degree, the applicant applied for and was granted another Student visa to undertake further study in a different field. In August 2017, the applicant allegedly performed a cosmetic procedure at a beauty clinic on the owner of the business, who subsequently died as a result of having been administered a lethal amount of a controlled anaesthetic. On 7 September 2017, the applicant was arrested and charged with a number of criminal offences in relation to the incident. At the time of the hearing, the criminal charges against the applicant were pending and the applicant advised that they had not yet entered a plea.
The delegate relied on the charges laid against the applicant when finding that the applicant posed a significant risk to the health and safety of the Australian community. This was their basis for cancellation of the applicant’s Student visa. The applicant claimed they had not been convicted of any offences. The applicant also claimed that during the incident they were acting under the instructions of their employer, who was the victim, and the surgeon, who performed surgery.
The Tribunal considered whether a ground for cancellation existed at the time of the decision. This required the Tribunal to assess the risk to the community based on all of the information available at the time of the decision. This information may include the existence of charges, the nature of those charges, whether the visa holder has been granted bail and, if so, the basis of any conditions imposed and, finally, the personal circumstances of the applicant and how those circumstances may impact on any risks.
The Tribunal acknowledged the difficulty of assessing the risk to the community when there are unproven charges before the court. The Tribunal stated that there is no requirement in subsection 116(1)(e) that there be a determination of the guilt of the visa holder and there is no requirement that the visa holder be compelled to give evidence. The Tribunal acknowledged that the existence of charges should be given weight when assessing risk. In this case, the Tribunal stated that the applicant’s evidence could not be tested because, after being given a warning in respect of self-incrimination, the applicant declined to respond in any detail. The Tribunal concluded that the existence of the charges should be given significant weight given their seriousness.
The Tribunal also found that the fact the applicant had been granted bail suggested the applicant was not considered by bail authorities to be an ‘unacceptable risk’. The Tribunal considered this did not carry significant weight.
Most importantly, the applicant’s visa was due to expire on 18 April 2018, less than two weeks after the making of the Tribunal’s decision. The Tribunal concluded that it was highly unlikely that the applicant will be a risk to the health and safety of the Australian community. There was no evidence the applicant was violent or that they had committed or were charged with a violent offence. The charges involved the unauthorised and unregulated use of anaesthetic in a particular setting. The Tribunal found that it was difficult to see how that conduct may possibly arise over the two weeks remaining on their visa. There was no evidence that the applicant was employed or likely to be employed in a cosmetic clinic over those two weeks. The Tribunal also noted unless the applicant is granted a criminal justice visa, they will need to leave Australia. If the applicant is required to remain to face trial as part of her bail conditions and a criminal justice visa iss not granted, they will be detained in immigration detention pending her trial.
The Tribunal was not satisfied that the ground for cancellation in subsection 116(1)(e) existed.
Read the full written decision on Austlii.