2109056 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant. The cancellation was based on the Minister's delegate being satisfied that the applicant's presence in Australia posed a risk to the health or safety of an individual, specifically a woman known to the applicant, due to charges of sexual assault and common assault.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) was made out. This section 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 or safety of an individual. The Tribunal was required to determine if, in light of subsequent events, the applicant continued to pose such a risk.

The Tribunal reasoned that the applicant had been found not guilty of all charges by a court in February 2019. The applicant's representative provided evidence of this acquittal and the absence of any criminal convictions to the Department. Despite this, the Department maintained that the visa cancellation was valid based on the grounds that existed at the time. However, the Tribunal noted that the Department had subsequently granted the applicant ten Bridging Visas since June 2019, each requiring the applicant to meet the character test under Public Interest Criterion 4001. This ongoing grant of bridging visas, the Tribunal inferred, suggested that the Department no longer considered the applicant to be a risk. Consequently, the Tribunal concluded that there was no basis to find that the applicant posed a risk to the health and safety of an individual, meaning the ground for cancellation under section 116(1)(e) was not satisfied.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the applicant's Subclass 785 (Temporary Protection) visa.