GAO (Migration)

The Administrative Appeals Tribunal (the Tribunal) was asked to review a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to grant the applicant, GAO, a Subclass 408 (Temporary Activity) visa. The refusal was based on the Minister's assessment that the applicant posed a threat to the safety of a segment of the Australian population.

The primary legal issue before the Tribunal was whether the applicant's criminal charges, despite an acquittal, constituted a ground for refusing the visa under the relevant provisions of the *Migration Act 1958* (Cth) and associated regulations. Specifically, the Tribunal had to determine if the applicant's past conduct, as evidenced by the charges, met the threshold for posing a threat to the safety of the Australian population, notwithstanding the acquittal.

In its reasoning, the Tribunal considered the evidence presented, including the nature of the criminal charges and the outcome of those proceedings. The Tribunal noted that an acquittal in criminal proceedings does not necessarily preclude the Minister from forming an adverse assessment regarding the applicant's character or potential risk. However, the Tribunal found that the evidence before it did not sufficiently establish that the applicant posed a genuine threat to the safety of a segment of the Australian population. The Tribunal applied the principles of administrative review, focusing on whether the Minister's decision was justified by the evidence and the law at the time of the review.

The Tribunal set aside the Minister's decision and substituted a new decision to grant the applicant the Subclass 408 visa.