2014052 (Refugee)

The applicant, a protection visa holder, sought review of the Minister's decision to cancel his visa. The dispute centred on whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, as contemplated by section 116(1)(e)(i) of the Migration Act 1958 (Cth). The decision was made by Deputy President Denis Dragovic of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine if the Minister was satisfied that the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community. This required an assessment of the applicant's past conduct, including criminal charges and convictions, in light of his intellectual disability, adolescent development, and history of family violence. The Tribunal also had to consider the meaning of "good order of the Australian community" as interpreted in previous case law.

The Tribunal considered the applicant's offending history, which included charges for possessing cannabis, rape, and unlawful assault, resulting in a Youth Supervision Order for the rape charges. It also took into account psychological assessments indicating an intellectual disability, though not to a degree that would negate criminal responsibility. The Tribunal noted that the applicant had matured since the assessments and that his engagement had improved. Applying the principles from *Tien v MIMA* (1998) 89 FCR 80, the Tribunal interpreted "good order" as relating to public order and activities that impact public life or disrupt the observance of the law. Despite the seriousness of the offences, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e)(i) was made out, finding that the power to cancel the visa did not arise.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.