Mauricio De Melo (Migration)

This matter concerned an appeal by Mauricio De Melo against the cancellation of his Subclass 500 (Student) visa. The cancellation was based on the ground that his presence in Australia posed a risk to the safety of the Australian community or an individual, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). The decision was reviewed by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out. This required the Tribunal to determine if the Minister was satisfied that the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal also considered the meaning of "good order of the Australian community" in the context of section 116(1)(e), drawing on existing case law.

The Tribunal found that while the applicant had been charged with wounding with intent to cause grievous bodily harm, he had subsequently been found not guilty of this offence by the District Court of New South Wales, acting in self-defence. Furthermore, an Australian Federal Police Certificate indicated no criminal conviction or pending criminal matters. The Tribunal noted that the power to cancel a visa under section 116(1)(e) can arise on the possibility of an event, but in this instance, the applicant's acquittal and the absence of further criminal proceedings meant the ground for cancellation was not satisfied.

Consequently, the Tribunal concluded that the power to cancel the applicant's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.