1835683 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant, who held a Bridging A (Class WA) visa. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the safety of an individual, pursuant to section 116(1)(e)(ii) of the *Migration Act 1958* (Cth). The applicant contended that the allegations leading to the cancellation were false and originated from his ex-wife, who allegedly harboured animosity towards him due to child custody arrangements.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Act was made out. Specifically, it needed to assess if the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community, or to the health or safety of an individual. The Tribunal considered the meaning of "good order of the Australian community" as interpreted in *Tien v MIMA* (1998) 89 FCR 80, which requires an element of risk that a person's presence might be disruptive to the administration of law or create public disruption.

The Tribunal noted that the delegate's decision to cancel the visa was based on allegations of behaviour that might pose a risk to an individual. However, the applicant had pleaded not guilty to the charges laid by the police. Crucially, the Tribunal was informed that the applicant had subsequently been found not guilty of these charges. Given this acquittal, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(e) existed. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 010 (Bridging A) visa.