1926766 (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Bridging A (Class WA) visa, Subclass 010, was cancelled. The cancellation was based on the applicant allegedly posing a risk to the safety of a segment of the Australian community. This concern arose from the applicant being charged with sexual assault and subsequently released on bail.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(i) of the *Migration Act 1958* (Cth) was established. This section permits visa cancellation if the Minister is satisfied that the visa holder has been charged with, or convicted of, an offence and that the cancellation is in the interests of the safety of the Australian community. The Tribunal was required to determine if the applicant continued to present such a risk, notwithstanding subsequent developments.

In its reasoning, the Tribunal acknowledged its obligation to assess the risk to the Australian community, while being informed by, but not bound by, court decisions. Crucially, the Tribunal noted that the applicant had since departed Australia, rendering him unable to pose a risk to the Australian community unless a new visa were granted. Furthermore, the charges that initially prompted the visa cancellation had been withdrawn. Consequently, the Tribunal concluded that the ground for cancellation under section 116(1)(e)(i) was not made out, meaning the power to cancel the visa did not arise.

Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.