Chakma (Migration)

The applicant, Mr. Chakma, sought review of a decision to cancel his Subclass 030 (Bridging C) visa. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the safety of a segment of the Australian community, specifically women, due to a criminal charge of indecent assault. The delegate's decision relied solely on this alleged event, acknowledging the applicant had no prior criminal record and no other evidence was presented. The matter was heard by the Tribunal, presided over by Irene O'Connell, Deputy Division Head.

The primary legal issue before the Tribunal was whether the ground for visa cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out. This section permits the Minister to cancel a visa if satisfied that the visa holder's presence in Australia is or may be, or would or might be, a risk to the health, safety, or good order of the Australian community or a segment thereof. The Tribunal was required to determine if the evidence before it supported a reasonable belief that the applicant posed such a risk.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events, the basis for the cancellation in this instance was a single criminal charge. Crucially, the applicant's representative provided a Certificate of Order from the Burwood Local Court of NSW, indicating that the charge of assault with an act of indecency had been withdrawn and dismissed. In the absence of any other evidence suggesting the applicant posed a risk to the Australian community, the Tribunal concluded that there was no reasonable basis for the belief required by section 116(1)(e). Consequently, the Tribunal found that the ground for cancellation did not exist, and 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 030 (Bridging C) visa.