Ni (Migration)

This matter concerned an application by a student visa holder (Subclass 500) to review the cancellation of their visa. The cancellation was based on the Minister’s satisfaction that the applicant’s presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(i) was established. This required the Tribunal to determine if the applicant’s presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community. The Tribunal considered the meaning of "good order," referencing Tien v MIMA (1998) 89 FCR 80, which indicated it concerns public order, disruption to the administration of law, or difficulties in relation to societal values.

The Tribunal noted that the alleged risk stemmed from a charge of affray under Victorian law. However, the applicant provided evidence, which the Tribunal accepted, that this charge had been withdrawn and struck out by the Magistrates’ Court of Victoria on 22 October 2019. The Tribunal also accepted evidence that the applicant had been granted a Bridging E visa on 29 January 2020. Given the withdrawal of the affray charge, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e)(i) was made out.

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.