Mekingrailas (Migration)

The applicant, a citizen of Thailand, sought review of the delegate's decision to cancel his Temporary Business Entry (Class 457) visa. The delegate had formed the view that the applicant's presence in Australia posed a risk to the safety of the Australian community, pursuant to section 116(1)(e)(i) of the *Migration Act 1958* (Cth). This view was based on several charges of rape and sexual assault laid against the applicant, which arose from his work as a massage therapist. The delegate considered these charges to be serious, particularly given the trusted nature of the applicant's employment and the potential trauma to victims.

The legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e) permits cancellation if the Minister or Tribunal is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of an individual or individuals.

The Tribunal affirmed the delegate's decision, finding that the existence of the serious charges for rape and sexual assault was sufficient to establish the ground for cancellation under section 116(1)(e). While acknowledging the applicant's denial of the charges and the fact that he was granted bail on his own undertaking, indicating no immediate risk to the public or absconding, the Tribunal gave weight to the seriousness of the alleged offending. The Tribunal also considered the applicant's stated desire to remain in Australia and his separation from his wife, the primary visa holder, noting his lack of other ties to Australia and that all his family resided in Thailand. Ultimately, having considered all circumstances, the Tribunal concluded that the visa should be cancelled.