Burton (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Special Category (Subclass 444) visa held by the applicant, Mr. Burton. The visa was cancelled by a delegate of the Minister under section 116(1)(e) of the *Migration Act 1958* (Cth) on the grounds that the applicant posed, or could pose, a risk to the health and/or safety of the Australian community. This decision was made despite the applicant having been charged with 12 criminal offences but not yet convicted, and having a prior matter that resulted in an adjourned undertaking and a fine. The Tribunal was constituted by two members, with the Presiding Member's opinion settling a disagreement between them.

The legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e) of the Act was established, and if so, how the discretion to cancel the visa should be exercised. Specifically, the Tribunal was asked to consider the relevance of the applicant holding a Special Category visa, his status as a long-term Australian resident, and the fact that he had not been convicted of any criminal offences. The applicant argued that cancellation under section 116(1)(e) was inappropriate when criminal charges were unproven, suggesting that cancellation on character grounds under section 501 of the Act, which requires a higher threshold, would be the correct avenue if the applicant were convicted.

The Presiding Member found that the delegate's conclusion that the applicant's presence posed an "unacceptable risk" was erroneous, as this was not the test under section 116(1)(e). Furthermore, the finding of a risk to the "health" of the Australian community was not supported by the evidence or the guidance provided in the Department's policy, which indicated this provision was aimed at public health risks such as infectious diseases. While acknowledging the seriousness of the pending charges and the previous matter, the Presiding Member noted that the Special Category visa, though temporary, operates similarly to a permanent visa and that cancellation under section 116 was not the appropriate power when criminal misconduct had not been established. The Presiding Member concluded that the decision to cancel the applicant's visa should be set aside.