1927214 (Migration)

The applicant, a holder of a Student (Temporary) (Class TU) visa, subclass 500, sought review of the Minister's decision to cancel his visa. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the health or safety of women, stemming from a charge of sexual intercourse without consent. The Administrative Appeals Tribunal was required to determine whether this ground for cancellation was made out and, if so, whether the visa should be cancelled considering all relevant circumstances.

The Tribunal considered the provisions of section 116(1)(e) of the Migration Act 1958 (Cth), which permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or individuals. The Tribunal noted that this power can arise on the possibility of past events, not requiring direct or certain evidence. The meaning of "good order" was considered in light of *Tien v MIMA* (1998) 89 FCR 80, requiring an element of risk that the person's presence might be disruptive to the administration of law or create public disruption. The applicant was facing a criminal charge, with his trial not yet commenced.

The Tribunal heard evidence from the applicant and his wife, who expressed belief in his innocence and stated she did not feel he posed a risk to women's safety. The applicant provided information regarding his ongoing legal proceedings, his bail conditions, his family support, and his desire to contribute to his family. The Tribunal noted the significant delays in the criminal proceedings and the applicant's compliance with bail conditions, including daily reporting to police and a curfew. The Tribunal also considered the applicant's wife's support and her lack of fear regarding his presence.

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