1931307 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging A (Class WA) visa of an applicant. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, stemming from criminal charges the applicant faced. The applicant contended that the cancellation was unwarranted, particularly given his ongoing engagement with the migration system and the presumption of innocence.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(e)(i) of the Migration Act 1958 (Cth) was established, and if so, whether to exercise its discretion to cancel the visa. The Tribunal considered the meaning of "good order of the Australian community" and acknowledged that a criminal charge, while not proof of guilt, could form the basis of a risk assessment. The Tribunal also examined the guidelines for the decision to prosecute, concluding that the pending criminal charge indicated sufficient evidence and public interest for prosecution to proceed, thus satisfying the ground for cancellation.

However, in exercising its discretion, the Tribunal found a critical inconsistency in the Department's actions. Despite cancelling the applicant's Bridging A visa due to perceived risk, the Department subsequently granted the applicant a Bridging E visa, which required satisfaction that the applicant would not engage in criminal conduct. The Tribunal considered this subsequent grant, with its condition against criminal conduct, to be highly persuasive. It found it illogical and unreasonable to uphold the cancellation of the Bridging A visa when the Department had, in effect, determined the applicant would not re-offend by granting the Bridging E visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's Bridging A visa, substituting a decision not to cancel it. The Tribunal concluded that, in light of the Department's subsequent actions in granting the Bridging E visa, it would be unreasonable to uphold the cancellation.