Mugo (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 573 Higher Education Sector visa of an applicant, Mr. Mugo. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the safety of an individual or the Australian community, specifically in relation to an alleged assault occasioning bodily harm.

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 provision allows for visa cancellation if the Minister 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 an individual. The Tribunal also considered the meaning of "good order of the Australian community" in light of existing case law.

The Tribunal noted that the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events, not requiring a certain foundation. However, the applicant had been charged with assault occasioning bodily harm, but this charge was dismissed by the Southport Magistrates Court on 21 January. Consequently, the Tribunal was not satisfied that the ground for cancellation existed, as the alleged event giving rise to the risk had not been substantiated in court.

As the ground for cancellation was not established, 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 Mr. Mugo's visa.