Goraya (Migration)

The applicant, a male from India, sought judicial review of a decision to cancel his Partner (Provisional) (Class UF) visa, subclass 309. The dispute arose from allegations of criminal conduct against the applicant, specifically charges of rape, attempted rape, and aggravated assault, all allegedly perpetrated against his ex-wife. The Minister had considered cancelling the visa under section 116(1)(e)(ii) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder's presence in Australia poses a risk to the health or safety of an individual. The decision was reviewed by Denis Dragovic, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(e)(ii) of the Act was made out. This required the Tribunal to determine if the applicant's presence in Australia was, or might be, a risk to the health or safety of any individual, specifically his ex-wife. The Tribunal also had to consider whether, even if the ground existed, the visa should be cancelled, taking into account all relevant circumstances, including government policy and the specific facts of the case.

The Tribunal reasoned that while the power to cancel a visa under s.116(1)(e)(ii) can arise on the possibility of past events, it must be based on more than unsubstantiated accusations. In this instance, all criminal charges against the applicant, including aggravated assault, were either withdrawn by the prosecution or not proceeded with. Furthermore, interim intervention orders had expired, and there was no evidence of harm to the ex-wife in the nearly four years since the charges were laid. The applicant also provided character references and had no current engagement with his ex-wife. Considering these factors, the Tribunal was not satisfied that the ground for cancellation existed.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 309 visa.