Tomerop (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 572 Vocational Education and Training Sector visa was cancelled. The dispute centred on whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were met, and if so, whether the visa should be cancelled. The Tribunal also considered the validity of a section 375A certificate relating to confidential information in the departmental file.

The primary legal issue before the Tribunal was to determine if the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community or an individual, as contemplated by section 116(1)(e). This involved interpreting the phrase "good order of the Australian community" and assessing whether the applicant's past conduct, specifically criminal charges for common assault against a former partner and an associated apprehended violence order, created such a risk. The Tribunal also had to consider whether, if the ground for cancellation was established, the Minister's discretion to cancel the visa should be exercised, taking into account all relevant circumstances.

The Tribunal reasoned that the ground for cancellation under section 116(1)(e) was satisfied because the applicant had been charged with common assault against his former partner and was subject to an apprehended violence order. It held that the power to cancel a visa under this section can arise from the possibility of past events, citing *Gong v MIBP* [2016] FCCA 561. The Tribunal found the section 375A certificate to be valid as it related to confidential third-party information. In exercising its discretion, the Tribunal acknowledged the applicant's original intention to study in Australia and his compliance with visa conditions. However, it found that the applicant did not have a compelling need to remain in Australia, particularly given his inability to continue his aviation studies due to the assault incidents and the subsequent apprehended violence order.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.