2005002 (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 010 (Bridging A) visa. The applicant, a national of [Country 1], had entered Australia on a visitor visa with the stated intention of a short stay, but subsequently lodged a protection visa application. The visa cancellation was based on the ground that the applicant's presence in Australia posed a risk to the health, safety, or good order of a segment of the Australian community, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). This ground arose from the applicant being charged with sexual intercourse without consent, allegedly occurring while he was employed as a disability support worker.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether the applicant's Bridging A visa should be cancelled, considering all relevant circumstances. The applicant argued that the Notice of Intention to Consider Cancellation did not clearly identify the risk, that the police facts sheet was not evidence of guilt, and that his grant of bail indicated a low risk to the community. He also asserted his innocence of the charges and his intention to plead not guilty.

In its reasoning, the Tribunal found that the ground for cancellation was established, noting that the power to cancel a visa under section 116(1)(e) does not require certainty of risk, but can arise from a possibility. The Tribunal acknowledged the applicant's pending criminal charge and the serious nature of the allegations. While considering the applicant's submissions regarding his bail, his intention to plead not guilty, and the withdrawal of some initial charges, the Tribunal also weighed the circumstances of his entry into Australia on a visitor visa with an intention to remain permanently. The Tribunal further considered the applicant's compelling need to remain in Australia due to his business, his spouse's pregnancy, and the potential hardship to his family, including previous miscarriages. Despite these factors favouring the applicant, the Tribunal concluded that the ground for cancellation existed and, having regard to all relevant circumstances, affirmed the decision to cancel the visa.