1911191 (Migration)

This matter concerned an application for review of a decision by the Department to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, who was detained in an immigration detention centre, had pleaded guilty to charges of sexually touching another person without consent and intentionally sexually touching a child between the ages of 10 and 16 years. The Department's delegate had cancelled the applicant's visa on the ground that his presence in Australia was or might be a risk to the safety of the Australian community or a segment of the Australian community.

The primary legal issue before the Tribunal was whether the applicant's continued presence in Australia posed, or might pose, a risk to the safety of girls and women in Australia, thereby justifying the cancellation of his visa under section 116(1)(e) of the Migration Act 1958 (Cth). The Tribunal was required to consider the applicant's past conduct, his current circumstances, and the likelihood of future offending.

The Tribunal reasoned that while the applicant's guilty pleas and convictions for serious sexual offences demonstrated a past violation of the safety of young women and girls, there was no current indication that his presence posed a risk. The Tribunal noted that the applicant remained in immigration detention, was closely monitored, and had strong incentives to behave well due to his sentencing appeal and desire to retain his visa. Applying the principle that a risk can arise on the possibility that some event occurred in the past, the Tribunal found that in his current circumstances of detention, the applicant's presence was not, or might not be, a risk to the safety of girls or women in Australia.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.