Tago (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 444 (Special Category) visa held by an applicant, referred to as Tago, following a conviction for affray. The applicant had pleaded guilty, was placed on a good behaviour bond, and no conviction was recorded. The Tribunal also had regard to the potential hardship to the applicant's family if the visa were cancelled.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the *Migration Act 1958* (Cth) was established. This section permits the cancellation of a visa if the Minister is satisfied that the person's presence in Australia would put the safety of the Australian community at risk. The Tribunal was required to determine if the applicant's conviction for affray, despite the absence of a recorded conviction, met this threshold.

The Tribunal reasoned that while the conviction for affray was a serious matter, the circumstances surrounding it, including the guilty plea, the good behaviour bond, and the fact that no conviction was recorded, meant that the specific ground for cancellation under s.116(1)(e) was not satisfied. The Tribunal concluded that it was not satisfied that the applicant's presence in Australia posed a risk to the safety of the Australian community. Consequently, the power to cancel the visa did not arise.

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