1920706 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were made out.

The Tribunal was required to determine if the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community or an individual, as contemplated by section 116(1)(e). This section allows for visa cancellation if the Minister is satisfied that such a risk exists, even if based on a possibility or past events.

The Tribunal reasoned that the basis for the visa cancellation was charges laid against the applicant and an application for an apprehended violence order (AVO) stemming from allegations made by Ms A. However, following submissions to the Director of Public Prosecutions (DPP) indicating that Ms A had manufactured false documents and that her claims were unfounded, the criminal charges were withdrawn and dismissed, as was the AVO application. The Tribunal accepted that the allegations were untrue and that the applicant's presence in Australia did not pose a risk. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e) existed, meaning the power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel the applicant's Subclass 309 Partner (Provisional) visa and substituted a decision not to cancel it.