Jaswal (Migration)

This matter concerned an appeal by Mr Jaswal against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 572 (Vocational Education and Training Sector). The cancellation was based on the ground that his presence in Australia posed a risk to the safety of an individual in the Australian community, pursuant to section 116(1)(e)(ii) of the Migration Act 1958 (Cth). The applicant had been charged with multiple counts of sexual intercourse without consent.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Act was made out. This involved considering whether the applicant's presence in Australia presented a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal noted that the threshold for this ground is not high and can arise from a possibility of past events. The phrase "good order of the Australian community" was interpreted as encompassing activities that impact public order, the administration of law, or create public disruption.

The Tribunal found that while the applicant had been charged with serious offences, the prosecution had subsequently dismissed these charges. Furthermore, the victim, who had initially reported the incidents, had expressed a desire to withdraw the charges. In light of these developments, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(e) of the Act existed. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 572 visa.