2100622 (Migration)

This matter concerned an application to review the cancellation of the applicant's Subclass 500 Student (Temporary) visa. The dispute arose because the Minister, acting under section 116(1)(e) of the Migration Act 1958 (Cth), was satisfied that the applicant's presence in Australia posed a risk to the health or safety of an individual. The decision to cancel the visa was made based on factual allegations that led to criminal charges being laid against the applicant. The review was conducted by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out. This section permits the Minister to cancel a visa if 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 of it, or to the health or safety of an individual. The Tribunal was required to determine if the factual basis for the alleged risk, which underpinned the cancellation decision, was established.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise from a possibility of risk, the specific factual allegations that led the delegate to consider the ground made out were central to the decision. The Tribunal noted that police documents indicated charges of touching another person without consent and sexual intercourse without consent had been laid against the applicant. However, the Tribunal was informed by the District Court of New South Wales that the applicant had been found not guilty of these charges. Consequently, the Tribunal concluded that the relevant factual allegations were not established, meaning there was no basis to conclude that the applicant posed a risk as contemplated by section 116(1)(e).

As the Tribunal was not satisfied that the ground for cancellation existed, the power to cancel the applicant's visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 Student visa.