Khan (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant who held a Student (Temporary) (class TU) Postgraduate Research Sector (subclass 574) visa. The cancellation was based on the ground that the applicant's presence in Australia might pose a risk to the safety of an individual, specifically his estranged spouse, following charges of common assault and stalking/intimidation laid by NSW Police.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) was made out. This involved assessing whether the applicant's presence in Australia was, or might be, a risk to the health or safety of an individual. The applicant had been charged with offences relating to his estranged spouse, but he contended that these claims were false and exaggerated, motivated by a desire for his spouse to apply for a Protection visa. He also noted that the police fact sheets did not indicate visible injuries to his spouse.

The Tribunal reasoned that while the delegate was satisfied the charges were serious and potentially posed a risk, it was not satisfied that the ground for cancellation under s 116(1)(e)(ii) was established. This conclusion was reached after considering the applicant's response, his assertion of innocence, his belief regarding the motivations behind the complaint, and his focus on completing his PhD. Consequently, the Tribunal found that 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 it.