2009285 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Skilled Regional Sponsored (Provisional) (Class SP) visa, Subclass 489, held by the applicant. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the safety of a segment of the Australian community, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had faced criminal charges, but was subsequently acquitted by a jury, and an apprehended violence application against him was withdrawn by the police.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) was made out. This provision allows for visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be, or would or might be, a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of individuals. The Tribunal noted that the power to cancel can arise on the possibility of past events, not requiring a direct, solid, or certain foundation. The expression "good order of the Australian community" was interpreted as encompassing activities that impact public activities, manifest publicly, or are disruptive to the administration or observance of the law.

The Tribunal considered the evidence, including the applicant's criminal charges for sexual intercourse with a child and common assault, which were later amended to intentionally sexually touching a child. The alleged offences occurred while the applicant was caring for the victim, a child with developmental and mental health conditions. However, the Tribunal also noted that the applicant was acquitted of the charges by a jury and that an apprehended violence application was withdrawn by the police. Given these outcomes, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e) was established.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 489 visa.