1732225 (Migration)

This matter concerned an appeal by a citizen of the United Kingdom against the cancellation of her Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth). The applicant had been found guilty of possession and supply of a prohibited drug, though the drugs were intended for personal use by friends and the applicant expressed significant remorse, not seeking financial gain.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(i) of the Act was made out. This required the Tribunal to determine if the applicant's past conduct, specifically the drug offences, rendered her presence in Australia a risk to the health, safety, or good order of the Australian community. The Tribunal considered the meaning of "good order of the Australian community," referencing *Tien v MIMA* (1998) 89 FCR 80, and noting it encompasses activities impacting public order, the administration of law, or societal equilibrium.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise from past events, it must be satisfied that the ground for cancellation exists. In this instance, the Tribunal found that the circumstances surrounding the drug offences, including the applicant's remorse and the lack of intent for financial gain, did not establish a sufficient risk to the health, safety, or good order of the Australian community. Consequently, the Tribunal concluded that the power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.