1812292 (Migration)

This matter concerned an application for review of a decision by the Department to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on the ground that the applicant's conduct, specifically being charged with assault occasioning actual bodily harm against his wife, indicated that his presence in Australia might present a risk to the safety of an individual in the Australian community. The applicant had been charged with assaulting his wife, and an Apprehended Violence Order (AVO) was subsequently made against him.

The primary legal issues before the Tribunal were whether the ground for cancellation was made out, and if so, whether the applicant's visa should be cancelled. The applicant had responded to the Notification of Intention to Consider Cancellation, arguing that he should be presumed innocent, that the matter was sub judice, and that the alleged victim intended to withdraw the charges. The delegate, however, found the alleged victim's email indicating an intention to reconcile and drop charges to be not credible, and proceeded with the cancellation.

The Tribunal considered evidence from the applicant's wife, who stated that the incident was a one-off occurrence stemming from the applicant's developing drinking habit and that they had since reconciled and resumed living together. She testified that the applicant had significantly reduced his drinking, was attending regular psychological appointments, and was actively involved in household duties and their son's life. She expressed confidence that the applicant was not a risk to her safety and did not wish for his visa to be cancelled, highlighting his financial and emotional support. The Tribunal also noted that the applicant had received a section 10 bond for the assault charge, requiring him to continue psychological treatment, and that the AVO was due to expire.

The Tribunal found that the applicant's conduct, while serious, did not establish that his presence in Australia presented a risk to the safety of an individual in the Australian community. The evidence indicated a genuine and ongoing effort by the applicant to address the issues that led to the incident, supported by his wife's testimony and his engagement with psychological services. Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.