“As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to...

This matter concerned an application for review of a decision to cancel Ms Yueqiong Fu's Subclass 500 (Student) visa under section 116(1)(e) of the *Migration Act 1958* (Cth). Ms Fu, a Chinese citizen, was charged with serious criminal offences, including manslaughter, following the death of a patient at a beauty clinic where she allegedly performed a cosmetic procedure. The Department of Immigration and Border Protection formed the intention to cancel her visa on the basis that she was, or may be, a risk to the health or safety of the Australian community. Ms Fu was granted bail after being held on remand, but was subsequently detained by Australian Border Force officers.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was established. This required the Tribunal to assess the risk Ms Fu posed to the Australian community, considering the criminal charges laid against her, the fact that she had not yet entered a plea, and the circumstances prevailing at the time of the review decision. The Tribunal was required to interpret the meaning of "risk" and the significance of the words "may be" and "might be" as introduced by a 2014 amendment to the Act, which lowered the threshold for establishing this ground for cancellation.

The Tribunal reasoned that while the amended section 116(1)(e) lowered the threshold for cancellation, the assessment of risk must be based on the information available at the time of the review. In this instance, Ms Fu's visa was due to expire shortly, and the Tribunal found there was little prospect of her engaging in activities similar to those that led to the charges before her visa expired. Consequently, the Tribunal was not satisfied that the risk to the Australian community, or a segment thereof, was established.

Accordingly, the Tribunal set aside the decision to cancel Ms Fu's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.