Reyes (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 500 (Student) visa. The applicant had been granted the visa on 10 April 2017. Subsequently, the Department of Home Affairs received information that the applicant had been charged by NSW Police with multiple serious offences on various dates in July 2017, and a court order naming the applicant as a person of interest was active at the time of the delegate's decision. Following a Notice of Intention to Consider Cancellation, the applicant responded, admitting to being "very foolish" and taking responsibility for their actions, highlighting the impact on their family and the potential breach of bail conditions if forced to leave Australia.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(e)(i) and (ii) of the Migration Act 1958 (Cth) were made out, and if so, whether to exercise its discretion to affirm the cancellation. Section 116(1)(e) permits cancellation if the Minister or Tribunal is satisfied that the visa holder's presence in Australia is or may 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. The Tribunal considered the meaning of "good order of the Australian community" in light of *Tien v MIMA* (1998) 89 FCR 80, noting it involves activities with a public element that could disrupt the administration of law or create public disruption.

The Tribunal found that the applicant's multiple charges on different days, indicating potential breaches of a court order on two occasions, constituted evidence that their presence in Australia posed a risk to the safety of the Australian community and individuals. Despite the applicant's admissions of remorse and explanations regarding financial difficulties impacting their studies, the Tribunal concluded that the ground for cancellation was established. In exercising its discretion, the Tribunal considered the applicant's personal circumstances, including their financial support for family and the potential impact on their legal proceedings. However, it also noted that the applicant had completed only one registered course of study and cancelled six others, indicating a failure to fully pursue the purpose of their student visa.

Ultimately, after considering all the circumstances, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.