Ferdous (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant, Mr. Ferdous. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were established.

The Tribunal was required to determine if the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of an individual. Specifically, the Tribunal had to assess whether the factual basis for such a risk, stemming from past allegations of assault, was sufficiently established.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise from a possibility of risk, the factual underpinnings must be established to the Tribunal's satisfaction. In this instance, the sole basis for the claimed risk was two charges of common assault and assault occasioning actual bodily harm. However, the applicant was found not guilty of both charges by the Sutherland Local Court. Consequently, the Tribunal was not satisfied that the factual circumstances giving rise to the alleged risk had been proven, and therefore the ground for cancellation under section 116(1)(e) did not exist.

The Tribunal set aside the decision to cancel Mr. Ferdous's Subclass 573 Higher Education Sector visa and substituted a decision not to cancel it.