2408427 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 444 (Special Category) visa of an applicant. The Minister had considered cancelling the visa under section 116(1)(e) of the Migration Act 1958 (Cth), which allows for cancellation if the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community. The grounds for this consideration stemmed from a lengthy criminal history, commencing in the applicant's youth and continuing until June 2019, and serious charges arising from an incident in August 2019 involving home invasion, false imprisonment, and assault with an imitation firearm.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Act was made out. This involved assessing whether the applicant's presence in Australia posed a risk to the health or safety of the Australian community, considering the information provided by the Australian Criminal Intelligence Commission and Victoria Police regarding the applicant's past convictions and the alleged offences from August 2019.

In its reasoning, the Tribunal noted that the power to cancel a visa under section 116(1)(e) can arise on the possibility of risk, not necessarily a direct or certain foundation. However, after considering the evidence, the Tribunal concluded that it was not satisfied that the ground for cancellation existed. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 444 (Special Category) visa.