Hu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of an applicant, referred to as Hu. The dispute centred on whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, which is a ground for visa cancellation under section 116(1)(e) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation under s 116(1)(e) was made out. This involved considering whether the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of individuals. The Tribunal noted that the power to cancel a visa under this section can arise even without a direct, solid, or certain foundation, and can be based on the possibility of past events. The expression "good order of the Australian community" was interpreted as encompassing activities that impact public activities, disrupt the administration or observance of the law, or create public disruption in relation to societal values.

The Tribunal considered evidence that the applicant had been charged with stalking or intimidating intending to cause fear of physical or mental harm and assault occasioning bodily harm, relating to events on 22 July 2019. However, the Tribunal also considered evidence from the applicant's migration agent, confirmed by New South Wales Police, that these charges were dismissed by the Burwood Local Court on 14 July 2020, with the applicant being found not guilty. Consequently, the Tribunal was not satisfied that the ground for cancellation under s 116(1)(e) existed, meaning the power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.