H Al Sharyah (Migration)

This matter concerned an appeal by H Al Sharyah (the applicant) against the cancellation of their Subclass 573 Higher Education Sector visa. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). The applicant contended that the grounds for cancellation no longer existed as the charges that formed the basis of the cancellation decision had been withdrawn. The decision was made by Senior Member Rachel Westaway of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out, given that the charges against the applicant had been withdrawn. The Tribunal was required to determine if the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community.

The Tribunal reasoned that the power to cancel a visa under section 116(1)(e) arises only if the decision maker is satisfied that the specified ground exists. In this instance, the applicant provided evidence, including a Certificate of Record from the Magistrates Court of South Australia and an email from the prosecuting solicitor, confirming that the charges had been withdrawn and there was no intention to pursue the matter. Based on this evidence, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e) was made out. Consequently, the power to cancel the visa did not arise.

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