1819344 (Migration)

The applicant, a holder of a Subclass 500 (Student) visa, sought review of the Minister's decision to cancel their visa. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were made out, specifically concerning the risk posed by the applicant's presence in Australia to the health, safety, or good order of the Australian community. The matter was heard by David McCulloch, a member of the Tribunal.

The Tribunal was required to determine if the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community. This involved considering the meaning of "good order of the Australian community" as interpreted in case law, which suggests a public order element concerning activities that impact public affairs or manifest publicly, potentially disrupting the observance of law or creating societal difficulties. The Tribunal also had to assess whether the specific circumstances of the applicant's arrest, charge, and subsequent acquittal of criminal offences satisfied this ground for cancellation.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of risk, the applicant had been acquitted of all charges. The applicant had pleaded not guilty, had a good prospect of success, and was ultimately found not guilty and acquitted by the District Court of [State 1]. Given this acquittal, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e) existed. Consequently, the power to cancel the visa did not arise.

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