1811140 (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Subclass 500 (Student) visa. The applicant, who held this visa, had been charged with offences related to the supply and possession of prohibited drugs. The delegate of the Minister had cancelled the visa under section 116(1)(e) of the *Migration Act 1958* (Cth), finding that the applicant's presence in Australia posed a risk to the health of the Australian community. The applicant sought review of this decision by the Tribunal.

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 section permits the Minister to cancel a visa if satisfied that the holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or an 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 reasoned that while the applicant had been charged with serious drug offences, the facts alleged by the police remained in dispute and were being vigorously defended by the applicant. Crucially, there had been no finding of guilt by any court or tribunal. The Tribunal noted that the delegate had relied on information regarding the adverse health impacts of certain drugs and the applicant's charges. However, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e) was made out, as the applicant's presence in Australia was not demonstrably a risk in the circumstances. Consequently, the power to cancel the visa did not arise.

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