Daniel (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Partner (Temporary) (Class UK) visa, subclass 820 (Spouse), held by Mr Daniel. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the safety of the Australian community, specifically referencing serious sexual offence charges. Mr Daniel had been charged with two counts of unlawful sexual intercourse without consent, although a previous charge involving a minor had been withdrawn.

The primary legal issue before the Tribunal was whether the ground for visa cancellation under s 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 holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal was required to determine if the evidence concerning the criminal charges established such a risk, notwithstanding that Mr Daniel had been found not guilty of the charges.

The Tribunal reasoned that while the Local Court had found sufficient evidence to place Mr Daniel on trial for the sexual assault charges, this was an administrative process and not a finding of guilt. The Tribunal noted that the complainant's statement was tendered at the preliminary examination, but the complainant did not give evidence. Crucially, the Tribunal considered the ongoing criminal proceedings, including the scheduled trial date, and the fact that the prosecution had not yet finalised the indictment. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled.