Rafael Sinche (Migration)

This matter concerned an appeal by Rafael Sinche against the cancellation of his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The decision under review was made by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) 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, or would or might be, a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of an individual or individuals. The Tribunal was required to consider the meaning of "good order of the Australian community" and whether the applicant's circumstances, specifically criminal charges he faced, constituted such a risk.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events, the expression "good order of the Australian community" implies a public order element concerning activities that impact public activities or manifest publicly, potentially disrupting the administration of law or creating public disruption. In this case, the applicant had been charged with two serious criminal offences. However, at the time of the decision, the applicant had been acquitted of both charges. The Tribunal clarified that an acquittal means the charges were not proven beyond reasonable doubt under the criminal law system, but this did not automatically mean the charges had not occurred. Nevertheless, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(e) existed, as the basis for the cancellation, namely the criminal charges, had not been proven to the requisite standard.

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