2210233 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 790 (Safe Haven Enterprise) visa. The applicant, a Sri Lankan citizen, had his visa cancelled under section 116(1)(e)(i) of the *Migration Act 1958* (Cth) on the basis that his presence in Australia posed a risk to the health, safety, or good order of the Australian community. This decision followed the applicant being charged with Child Stealing in May 2022.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(e)(i) were made out, and if so, whether the visa should be cancelled. This involved considering whether the applicant's alleged conduct, leading to the charge, constituted a risk to the Australian community, and then assessing the relevant circumstances for cancellation.

The Tribunal reasoned that while the ground for cancellation, as defined by section 116(1)(e)(i), could arise from a possibility of past events, the specific circumstances of this case warranted a different outcome. The applicant had been charged with Child Stealing, but the charges were subsequently discontinued as there was no reasonable prospect of securing a conviction. Furthermore, the applicant had no prior history of offending. The Tribunal acknowledged the significant hardship the applicant had endured due to his imprisonment and the visa cancellation.

Ultimately, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it.