Skinner (Migration)

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 572 Vocational Education and Training Sector visa. The cancellation was based on the Minister being satisfied that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth). The applicant was facing pending criminal charges in Australia at the time of the review.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) was made out, and if so, whether to exercise its discretion to cancel the visa. In assessing the risk, the Tribunal considered that the power to cancel a visa under this section does not require a certain or direct foundation, but can arise from the possibility that an event occurred in the past, such as the laying of criminal charges. The Tribunal also had to consider all relevant circumstances in exercising its discretion, including government policy and matters raised by the applicant.

The Tribunal reasoned that the laying of criminal charges, even if unproven, could support a finding of risk to the community, and that it was not the Tribunal's role to determine guilt or innocence. While acknowledging the applicant's desire to complete his studies and his lack of prior criminal history in Australia, the Tribunal found the applicant reluctant to discuss the circumstances leading to the charges. Despite noting that the applicant was not in breach of other visa conditions and had not been untruthful or unco-operative with the Department, the Tribunal concluded that, on balance, the risk to the community warranted the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant's visa.