Islam (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector, held by the applicant. The cancellation was based on the Minister’s satisfaction that the applicant’s presence in Australia posed a risk to the safety of an individual, pursuant to section 116(1)(e)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) was made out, and if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The specific ground alleged was that the applicant’s presence in Australia was or might be a risk to the health or safety of an individual, stemming from allegations of common assault against his partner.

The Tribunal found that the ground for cancellation under s 116(1)(e) was established, noting that the power to cancel can arise on the possibility of past events. However, the Tribunal then considered the exercise of discretion. It took into account the applicant’s genuine desire to study in Australia, his academic performance prior to the charges, and the significant stress and anxiety caused by the criminal charges and subsequent circumstances, including the presence of his former partner at the university and an apprehended domestic violence order. The Tribunal acknowledged that the applicant continued to attempt to complete his studies, paid tuition fees, and remained enrolled, despite a decline in academic performance.

Ultimately, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s visa.