1619661 (Migration)

This matter concerned the review of a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant. The applicant had entered Australia on this visa to work for a specific sponsor. The dispute arose when the Minister, through the Tribunal, considered cancelling the visa under section 116(1)(e)(ii) of the Migration Act 1958, on the grounds that the applicant's presence in Australia posed a risk to the health or safety of individuals.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(ii) was established, and if so, whether the discretion to cancel the visa should be exercised. This involved determining if the applicant's presence in Australia was or might be a risk to the health or safety of individuals, considering pending criminal charges, the applicant's plea of not guilty, his continued incarceration, and submissions regarding his criminal history and future intentions. The Tribunal also had to consider various circumstances in exercising its discretion, including the purpose of the applicant's travel, his compliance with visa conditions, and the circumstances leading to the cancellation ground.

The Tribunal reasoned that the ground for cancellation under section 116(1)(e)(ii) was established due to the pending criminal charges, including unlawful stalking. While acknowledging the applicant's assertion of innocence and his intention to plead not guilty to the remaining charges, the Tribunal found that the presence of these charges, particularly those involving alleged stalking, indicated a potential risk to the safety of individuals. In exercising its discretion, the Tribunal noted that the applicant had been unable to fulfil the purpose of his visa due to his incarceration and that the visa had expired. While giving some weight to the applicant's lack of prior convictions and uncooperative conduct, the Tribunal concluded that, on balance, the circumstances warranted the cancellation of the visa.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.