Park (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the applicant's Subclass 485 (Temporary Graduate) visa. The applicant, a citizen of South Korea, had been in Australia since 2011, holding various visas and pursuing educational and professional qualifications. The cancellation was initiated following the applicant being charged with rape in January 2018, an allegation he denies. The delegate considered this charge, along with prior minor traffic offences, as grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth), which permits visa cancellation if the visa holder's presence in Australia poses a risk to the health, safety, or good order of the Australian community or an individual.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(e) was established. Specifically, it needed to assess if the applicant's presence in Australia presented a risk to the health or safety of an individual or the Australian community, or to its good order. This involved considering the seriousness of the rape charge, the applicant's compliance with bail conditions, and his assertion of innocence. The Tribunal also had to interpret the meaning of "good order of the Australian community" in the context of s.116(1)(e), drawing on relevant case law.

The Tribunal reasoned that while the applicant had been charged with a serious offence, he maintained his innocence and claimed the alleged sexual encounter was consensual. Crucially, the applicant had not breached any of his bail conditions, which included strict prohibitions on contact with the alleged victim and witnesses, and had surrendered his passport. The Tribunal noted that the evidence supporting the rape charge had not yet been tested in court. Applying the principles from cases such as *Gong v MIBP* and *Tien v MIMA*, the Tribunal concluded that the risk to the safety of the Australian community or an individual was not sufficiently established to warrant cancellation, particularly given the applicant's compliance with bail and his assertion of innocence in ongoing criminal proceedings.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 485 (Temporary Graduate) visa.