1810854 (Migration)

This matter concerned an appeal by a Subclass 457 (Temporary Work (Skilled)) visa holder against the cancellation of his visa by the Department. The cancellation was based on the ground that the visa holder's presence in Australia posed a risk to the health or safety of an individual, stemming from an alleged violent incident involving a work colleague. The visa holder had been charged with common assault, being armed with intent to commit an indictable offence, and stalking or intimidating with intent to cause fear or physical harm, although these charges were later dismissed.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the meaning of "good order of the Australian community" in the context of the visa holder's alleged conduct and assess the risk posed by his presence in Australia. Furthermore, the Tribunal had to determine whether, in light of all relevant circumstances, including evidence of rehabilitation and the impact on his family, the cancellation of the visa was the preferable decision.

The Tribunal found that while the alleged violent behaviour could potentially satisfy the ground for cancellation under section 116(1)(e), it was not a mandatory cancellation. In exercising its discretion, the Tribunal considered the applicant's submission that he was presumed innocent until proven guilty, the dismissal of criminal charges, and the strong evidence of rehabilitation. This evidence included character references from his employer and medical practitioner, a statutory declaration from the applicant, and crucially, the significant support of his wife, as evidenced by her financial surety and the bail conditions requiring him to reside with her. The Tribunal also noted the applicant's long period of residence in Australia, his established family life, and the potential negative impact of his removal to Bangladesh.

Ultimately, the Tribunal concluded that the preferable decision was not to cancel the applicant's visa. Accordingly, the Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.