Lefoe (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 444 Special Category visa held by a New Zealand citizen. The visa was cancelled by the Department of Home Affairs on the grounds that the visa holder's presence in Australia posed a risk to the safety of the Australian community, specifically due to serious charges of sexual penetration of a child under 16 years of age. The applicant appealed this decision to the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) was made out. This section allows for visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be, or would or might be, a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal also had to consider whether, having found the ground for cancellation to exist, it should exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal reasoned that the serious nature of the charges, even though pending, established a risk to the safety of the Australian community. It noted that the cancellation ground did not require a conviction or a direct, solid, or certain foundation, but could arise from the possibility of past events. Despite the applicant's remorse and the fact that he was released on bail, the Tribunal found that the applicant demonstrated a severe lack of judgment in his actions, which posed a risk of future lapses in judgment, potentially impacting community safety. The Tribunal considered the applicant's reasons for remaining in Australia, including family ties and employment prospects, but concluded that these did not outweigh the risk posed by his demonstrated poor judgment.

The Tribunal affirmed the decision to cancel the applicant's Subclass 444 Special Category visa.