1906824 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 573 Higher Education Sector visa. The applicant had been convicted of a serious drug offence, for which she received an intensive correction order involving electronic monitoring. The Department of Home Affairs had sought to cancel the applicant's visa under section 116(1)(e) of the Migration Act 1958 (Cth), which permits cancellation if the Minister is satisfied that the person's presence in Australia would pose a risk to the safety of the Australian community.

The primary legal issue before the Tribunal was whether the applicant's criminal conviction and the terms of her intensive correction order established that her presence in Australia posed a risk to the safety of the Australian community, thereby justifying the cancellation of her visa under section 116(1)(e). The Tribunal also considered whether other grounds for cancellation might exist, such as under section 116(1)(g) and regulation 2.43(oa), but determined that these grounds had not been properly enlivened by the Department and the applicant had not had a sufficient opportunity to respond to them.

The Tribunal reasoned that while the applicant's conviction for a serious drug offence was a significant matter, the specific conditions of her intensive correction order, including electronic monitoring and strict reporting requirements, were designed to mitigate any risk to the community. The Tribunal noted that the applicant had not yet breached the terms of her order and that the order itself represented a form of community-based punishment. Having regard to all the circumstances, including the purpose of the intensive correction order and the applicant's compliance to date, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not made out.

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