Sah (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Mr. Sah. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the health or safety of an individual, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). This ground for cancellation arises 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.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Act was made out. Specifically, the Tribunal had to assess if the applicant's presence in Australia posed a risk to the health or safety of an individual, considering the circumstances that led to the applicant being charged with a domestic violence-related assault. The Tribunal also considered the meaning of "good order of the Australian community" as interpreted in relevant case law, which requires an element of risk that a person's presence might be disruptive to the administration of law or create public disruption.

The Tribunal considered evidence that the applicant had been charged with assault following an altercation at a shared student accommodation. However, the applicant maintained his innocence, stating he was attempting to break up a fight. Crucially, the Tribunal ascertained that the assault charges were withdrawn by the Police and the applicant was not convicted. Applying the principles that a cancellation ground can arise on the possibility of past events and that the risk must be established, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1)(e) existed, as the charges had been withdrawn.

Consequently, the Tribunal found 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.