Song (Migration)

This matter concerned the review of a decision to cancel the Subclass 600 (Visitor) visa of the applicant, Mr. Song. The cancellation was based on the ground that the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community or a segment of it, pursuant to s 116(1)(e)(i) of the *Migration Act 1958* (Cth). The applicant, a 73-year-old Chinese national, had been visiting his son in Australia when he was arrested and charged with wilfully committing an indecent act in the presence of a child. Although criminal charges were later withdrawn, the Department of Immigration and Border Protection proceeded with the visa cancellation process.

The primary legal issue before the Tribunal was whether the ground for cancellation, specifically the risk posed by the applicant's presence in Australia, was made out. This required the Tribunal to assess the evidence presented by both the applicant and the children who made the allegations, and to determine whether the applicant's conduct constituted a risk to the safety of the Australian community or a segment thereof, even in the absence of a criminal conviction. The Tribunal also had to consider all relevant circumstances, including government policy, in deciding whether to cancel the visa if the ground was established.

The Tribunal considered the conflicting accounts of the incident. The applicant maintained his innocence, stating he had merely adjusted his clothing after dismounting his bicycle and was unaware of any untoward behaviour or that the children were upset. The children, however, provided a different version of events, alleging the applicant engaged in indecent behaviour while watching one of them play basketball. The Tribunal noted that the criminal charges had been withdrawn and that the applicant had consistently maintained his innocence. After weighing the evidence and considering the applicant's age, his limited English, and the fact that he had no prior criminal record, the Tribunal concluded that the ground for cancellation was not sufficiently made out to warrant the cancellation of his visa.

Consequently, the Tribunal set aside the decision to cancel Mr. Song's visa and substituted a decision not to cancel it.