Khan (Migration)

The Administrative Appeals Tribunal considered the case of Mr Khan, a holder of a Subclass 500 (Student) visa, whose visa had been cancelled by the Minister. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were made out, specifically concerning a risk to the safety of the Australian community or an individual. Mr Khan had been charged with four counts of ‘Assault with Act of Indecency’ but was subsequently found not guilty of all offences by the District Court due to insufficient evidence.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(e) existed, which permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia poses or may pose a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal noted that this ground can arise from the possibility of past events and that ‘good order of the Australian community’ concerns activities with a public impact or that disrupt the observance of the law. The Tribunal also had to consider the basis on which Mr Khan's criminal conviction was overturned and whether this affected the assessment for visa cancellation, as the visa decision-maker's assessment differs from that in criminal proceedings.

In its reasoning, the Tribunal considered the most recent evidence, which was the District Court's order finding Mr Khan not guilty of all charges. Mr Khan provided evidence of his intention to continue his studies, his payment of university fees, and his engagement. He explained that his conviction was overturned due to insufficient evidence, asserting he did not intentionally touch the alleged victims and that photographic evidence suggested it would have been impossible to do so. He also suggested the claims might have been racially motivated. The Tribunal acknowledged that the visa cancellation assessment was distinct from the criminal proceedings and that police fact sheets indicated Mr Khan had confirmed he may have touched the alleged victims. However, considering all circumstances, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel Mr Khan's Subclass 500 (Student) visa and substituted a decision not to cancel it.