s 116(1)(e) interpreted

Federal Court. This decision interprets in detail the operation of s 116(1)(e): "... the Minister may cancel a visa if he or she is satisfied that... the presence of its holder in Australia is or may be, or would or might be, a risk to ... the health, safety or good order of the Australian community or a segment of the Australian community".

The questions to the Federal Court (FCA) were as follows:

Question 1: May there be circumstances where the risk to health, safety and good order under s 116(1)(e) overlap?

Question 2: Was it open to the Tribunal to rely on the Appellant's status as a dealer in dangerous drugs as the source of the risk to the good order of the Australian community?

Question 3: Can it be said that reliance on past offending alone may not be sufficient to justify cancellation of a visa under s 116(1)(e), depending on the circumstances?

Question 4: Can it be said that a conviction for a minor crime is highly unlikely to be sufficient to explain the basis for a finding of risk to good order?

Question 5: In cases where the crime is more serious, but of a kind unlikely to be repeated, can it be said that it may well be necessary for the decision-maker to set out in some detail the basis upon which such conviction supports a finding of risk?

Question 6: Is PAM3 binding on decision-makers in the context of s 116(1)(e)?

Question 7: Is greater caution required in cancelling a visa under s 116(1)(e) on the basis of charges that are not yet proved, as compared to convictions?

Question 8: Can it be said that it may well be necessary for a precise identification of whether the risk is to the Australian community or a particular segment of it, depending on the relevant charges or conviction?

Question 9: May a single past conviction, even in circumstances where the criminal conduct is highly unlikely to be repeated, be sufficient to satisfy the decision maker of the relevant risk under s 116(1)(e) in that such conduct might lead to an adverse reaction by certain members of the Australian society to the offender's presence in Australia?

The FCA answered those questions as follows:

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