Tanui (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Mr Tanui. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, as provided for in section 116(1)(e) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) was made out. This required the Tribunal to determine if 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. The Tribunal considered the fact that the applicant had been charged with an offence, but crucially, whether this charge had resulted in a criminal conviction or remained outstanding.

The Tribunal noted that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events, the evidence presented demonstrated that the applicant had been charged with Inflict Actual Bodily Harm with Intent to have Sexual Intercourse. However, subsequent documentation, including a Disclosable Court Outcome and a letter from NSW Legal Aid, confirmed that the Office of the Director of Public Prosecutions had decided not to proceed with the charge, which was formally withdrawn and dismissed by the court on 26 March 2020. The applicant had no criminal conviction in respect of this matter, and no outstanding matters. Therefore, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not established.

Consequently, the Tribunal set aside the decision to cancel Mr Tanui's visa and substituted a decision not to cancel his Subclass 500 (Student) visa.