1907418 (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The core of the matter involved whether the applicant's presence in Australia posed a risk to the safety of an individual, stemming from untested sexual assault charges.

The Tribunal was required to determine two key issues: firstly, whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, specifically concerning a risk to the safety of an individual; and secondly, if such a ground was established, whether the discretion to cancel the visa should be exercised in light of all relevant circumstances. The policy guidelines in PAM3 were also to be considered in relation to the established ground.

In its reasoning, the Tribunal found no evidence that the applicant posed a risk to the health or good order of the Australian community. Regarding the risk to safety, the Tribunal noted that the applicant had been charged with sexual assault in November 2018, with a committal hearing having taken place. However, the Tribunal accepted submissions that a visa cancellation could not be based solely on an untested allegation of criminal conduct, referencing the principle that inferring guilt or a reasonable basis for a charge merely from the fact of a charge being laid could constitute jurisdictional error. The Tribunal concluded that the discretion to cancel the visa should not be exercised.

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