1806096 (Migration)

This matter concerned an application to the Tribunal to review a decision to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on the delegate's satisfaction that the applicant's continued presence in Australia posed a risk to the health and safety of an individual, specifically her former partner, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had been charged with common assault and destruction or damage to property, and an apprehended violence order had been initiated against her.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out. This required the Tribunal to determine if it was satisfied that the applicant's conduct posed a risk to the health and safety of another individual. If this ground was established, the Tribunal would then need to consider whether, in all the relevant circumstances, the visa should be cancelled.

The Tribunal considered the police report detailing the incident, which included allegations of the applicant attempting to prevent her former partner from leaving her residence and damaging his vehicle. The applicant, in her response, denied guilt, attributing the incident to her former partner's controlling behaviour and fear for her safety. She provided text messages and evidence of prior damage to her former partner's car to support her account, along with character references. The Tribunal found that it was not satisfied that the ground for cancellation under section 116(1)(e) had been established.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.