1834399 (Migration)

This matter concerned an appeal by a visa holder against the decision to cancel his Subclass 188 – Business Innovation and Investment (Provisional) visa. The cancellation was based on the ground that the visa holder’s presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e)(ii) of the Migration Act 1958 (Cth). The visa holder had been charged with Assault Occasioning Bodily Harm against his wife, following a domestic dispute.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(ii) was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal considered the meaning of "good order of the Australian community," referencing Tien v MIMA (1998) 89 FCR 80, and concluded that it encompasses activities that might disrupt the proper administration of law or create public disruption. The Tribunal found that the charge of assault, even though a conviction was not recorded and the injuries were minor, was sufficient to satisfy the ground for cancellation, as it involved a risk to the safety of an individual and potentially the good order of the community.

In exercising its discretion, the Tribunal considered the purpose of the applicant's stay, which was to accompany his wife and children. It noted that the applicant's wife, the primary visa holder, had subsequently sold her business in Australia due to the applicant's removal and had returned to China with their child. The Tribunal found that the sale of the business weakened the applicant's case for discretionary cancellation, as it indicated a diminished need to remain in Australia. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.