1805274 (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on section 116(1)(e) of the *Migration Act 1958* (Cth), which permits cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health or safety of an individual or individuals. The applicant had been charged with serious criminal offences, including intentionally causing injury and unlawful imprisonment, and the delegate determined that his presence posed a risk to the Australian community.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the *Migration Act* was made out. This required the Tribunal to assess the evidence and determine if the applicant's presence in Australia constituted a risk to the health or safety of any individual or individuals. The Tribunal considered the applicant's response to the Notice of Intention to Consider Cancellation, which included submissions that the circumstances of the alleged offending were confined and potentially justifiable, that the applicant intended to contest the charges, and that his compliance with bail conditions indicated any potential risk was managed.

The Tribunal found that it was not satisfied that the applicant's presence in Australia posed a risk to the health or safety of any individual or the Australian community. While acknowledging the serious charges laid against the applicant, the Tribunal noted that the applicant had pleaded guilty to intentionally causing injury and unlawful imprisonment and had been issued a Community Corrections Order. Crucially, the Tribunal considered findings from a psychological report which described the offending as "strictly situationally motivated and reflective of the prevailing circumstances," an "isolated incident and not a pattern of behaviour." The Tribunal also noted the applicant's compliance with bail conditions. Based on these considerations, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not established.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 500 (Student) visa.