Ganehi Arachchilage (Migration)

The Administrative Appeals Tribunal considered an appeal by an applicant whose Student (Temporary) (Class TU) visa, subclass 573, had been cancelled by a delegate. The cancellation was based on the ground that the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community. This risk was inferred from the applicant having been charged with knowingly possessing child abuse material, an offence carrying a maximum penalty of 10 years imprisonment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 had been made out, and if so, whether the discretion to cancel the visa should be exercised. The applicant argued that the charge did not necessarily equate to guilt, presenting submissions that detailed the elements of the offence, particularly the requirement for intention and the potential for material to be downloaded to a computer's temporary internet cache without the user's knowledge or intent to possess it. The Tribunal also considered the degree of hardship the applicant would suffer if the visa were cancelled.

The Tribunal reasoned that the serious nature of the charge, even if not yet proven in court, inferred a sufficient degree of risk to the community. While acknowledging the applicant's submissions regarding the defence to the charge and the potential for innocent possession through internet caching, the Tribunal found that the risk posed by the alleged conduct outweighed the hardship the applicant would experience if the visa were cancelled. Consequently, the Tribunal concluded that the proper exercise of its discretion favoured affirming the delegate's decision.

The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 573 Higher Education Sector visa.