Quispe Roque (Migration)

This matter concerned an application by Mr. Quispe Roque for review of a decision to cancel his Subclass 500 (Student) visa. The cancellation was based on the ground specified in section 116(1)(e) of the *Migration Act 1958* (Cth), which permits the Minister to cancel a visa if the holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community. The applicant had been arrested and charged with the offence of Affray, stemming from an incident at Auburn railway station.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was made out. This required the Tribunal to consider the applicant's criminal history, specifically the charge of Affray, and determine if his presence in Australia posed a risk to the community. The Tribunal also had to consider the applicant's response to the notice of intention to cancel his visa and any evidence he provided to demonstrate he did not pose such a risk.

The Tribunal reasoned that while the applicant had been arrested and charged with Affray, the evidence presented indicated that this charge had been dismissed or withdrawn by the court. Furthermore, a Criminal History Check Certificate confirmed there were no disclosable court outcomes. The applicant also confirmed during the hearing that the charge was dismissed and nothing was outstanding. Given that the alleged offence did not result in a conviction or any ongoing legal proceedings, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not established.

Consequently, the Tribunal set aside the decision to cancel Mr. Quispe Roque's Subclass 500 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.