Muteke (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The Minister had sought to cancel the visa under section 116(1)(e) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder's presence in Australia poses a risk to the health, safety, or good order of the Australian community or individuals.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) was established. Specifically, the Tribunal had to consider if the applicant's presence in Australia presented a risk to the health or safety of individuals or the good order of the Australian community, as contemplated by the provision. The Tribunal also needed to assess whether the delegate's satisfaction that this ground existed was justified.

The delegate's decision to cancel the visa was based on information that the applicant had been charged with Grievous Bodily Harm. However, the Tribunal noted that the applicant was subsequently tried by a jury and found not guilty of this charge, with no further matters before the court. Applying the principles from cases such as *Gong v MIBP* and *Tien v MIMA*, the Tribunal concluded that because the applicant had been found not guilty of the charge, the ground for cancellation under section 116(1)(e) was not made out. Consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.