1903544 (Migration)

The applicant, a holder of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, sought review of the Minister's decision to cancel his visa. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the health of the Australian community, stemming from his alleged involvement in illegal drug cultivation. The applicant had pleaded guilty to one charge of knowingly taking part in the cultivation of cannabis by enhanced indoor means, with other charges being dropped by the prosecution.

The Tribunal was required to determine whether the ground for visa cancellation under s.116(1)(e) of the Migration Act 1958 (Cth) was made out. This involved assessing whether the applicant's involvement in drug cultivation presented a risk to the health of the Australian community. If the ground was established, the Tribunal would then consider whether, in all the relevant circumstances, the visa should be cancelled.

The Tribunal found that the ground for cancellation under s.116(1)(e) was not satisfied. While acknowledging the applicant's conviction for cultivating cannabis, the Tribunal considered the applicant's explanation of his limited involvement, his lack of prior drug use or involvement, and his subsequent compliance with strict bail conditions. The Tribunal also took into account the applicant's personal circumstances, including his marriage to an Australian citizen, his wife's pregnancy, his commitment to his studies and work, and his voluntary work at a Buddhist temple. Given these factors, the Tribunal concluded that the power to cancel the visa did not arise.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 573 Higher Education Sector visa.