Tran (Migration)

This matter concerned an application by a student visa holder to review the decision to cancel their Subclass 500 (Student) visa. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the Australian community, as contemplated by section 116(1)(e)(i) of the Migration Act 1958 (Cth). The Tribunal was required to determine whether this ground for cancellation was made out.

The Tribunal considered whether the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community or a segment of it. This power to cancel a visa can arise even on the possibility of past events. At the time of the delegate's decision, the applicant faced criminal charges in New South Wales, including two charges and a charge of failing to appear in accordance with a bail acknowledgement.

However, the Tribunal accepted evidence that the prosecuting authorities withdrew the first two charges, and the court dismissed the charge of failing to appear. Crucially, there were no criminal charges pending against the applicant, no criminal convictions, and no findings of guilt recorded in Australia. While the applicant had made admissions to police, the Tribunal was not satisfied that these admissions alone established a risk to the community. The Tribunal also noted that the applicant had demonstrated an understanding of appropriate behaviour in Australia and the consequences of criminal charges for their visa status since being charged. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e)(i) was made out, meaning the power to cancel the visa did not arise. The Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 500 (Student) visa.