1902155 (Migration)

This matter concerned an application to review the cancellation of the applicant's Bridging A (Class WA) visa, Subclass 010. The dispute arose from the Minister's decision to cancel the visa under section 116(1)(e) of the Migration Act 1958 (Cth), on the grounds that the applicant's presence in Australia posed a risk to the safety of an individual in the Australian community. The applicant had been charged with common assault and assault occasioning actual bodily harm, which formed the basis for the delegate's assessment of risk.

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 visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is, or may be, a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of an individual. The Tribunal was required to determine if the applicant's alleged conduct, as initially presented to the delegate, constituted such a risk, particularly in light of subsequent developments in the criminal proceedings.

The Tribunal's reasoning focused on the evidence presented regarding the assault charges. While the delegate had cancelled the visa based on charge sheets and police facts, the applicant later provided evidence that both charges had been dismissed and he was found not guilty by the [Local Court]. Furthermore, an application for an apprehended violence order against the applicant was also dismissed. Crucially, the applicant also submitted emails from the alleged victim, which suggested remorse, an attempt to retract her statement, and an acknowledgment that the applicant had not threatened or harmed her. Considering this new evidence, the Tribunal concluded that the applicant did not pose a risk to the health or safety of the alleged victim, nor was there any other evidence to suggest a risk to the broader community. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e) was established.

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