Bhoriwal (Migration)

The applicant, Mr. Bhoriwal, sought review of a decision to cancel his Subclass 573 Higher Education Sector visa. The cancellation was based on the ground that the applicant had been charged with a criminal offence, pursuant to section 116(1)(e) of the *Migration Act 1958* (Cth). However, the criminal charges against the applicant were subsequently withdrawn.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the *Migration Act 1958* (Cth) continued to exist after the criminal charges that formed the basis of the cancellation were withdrawn.

The Tribunal found that the ground for cancellation, as stipulated in section 116(1)(e), requires the existence of pending criminal charges. As the charges against Mr. Bhoriwal had been withdrawn, the Tribunal was not satisfied that this ground for cancellation was made out. Consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.