Sili (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 444 (Special Category) visa held by the applicant, a New Zealand national. The dispute centred on whether the applicant's presence in Australia posed a risk to the health or safety of an individual, as contemplated by section 116(1)(e)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the ground for cancellation under section 116(1)(e)(ii) 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 or safety of an individual. The Tribunal also considered the meaning of "good order of the Australian community" in the context of section 116(1)(e), drawing on existing case law.

The Tribunal reasoned that while the applicant had a criminal record, the offences committed between 2013 and 2016 were minor. Crucially, a serious charge of choking, suffocation, or strangulation, which was a significant factor in the delegate's decision, had been withdrawn by the time of the Tribunal hearing. Although the applicant still faced trial for contravening a domestic violence order, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e)(ii) was established.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 444 (Special Category) visa.