Chan (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Chan, who sought to challenge the cancellation of his Bridging A visa. The dispute arose from the Minister's decision to cancel Mr. Chan's visa under section 116(1)(e) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder's presence in Australia poses a risk to the health, safety, or good order of the Australian community or an individual. Mr. Chan's criminal history, including convictions and lengthy imprisonment, along with periods of unlawful status in Australia, formed the basis of the cancellation.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether the discretion to cancel the visa should be exercised in Mr. Chan's circumstances. The Tribunal was required to assess the risk Mr. Chan's presence posed to the Australian community, considering his past conduct and the possibility of future risk. It also had to weigh various factors in exercising its discretion, including Mr. Chan's personal circumstances, his reasons for remaining in Australia unlawfully, and the potential hardship his removal would cause.

In its reasoning, the Tribunal affirmed that the ground for cancellation under section 116(1)(e) was established, noting that the risk does not need to be certain and can be inferred from past conduct, such as criminal charges and convictions. The Tribunal found that Mr. Chan's lengthy periods of unlawful status, including approximately 25 years between 1987 and 2012, were not adequately explained and could have facilitated criminal activity by allowing him to operate with less scrutiny. While acknowledging Mr. Chan's desire to remain in Australia to be with his adult children, who are long-term residents, and considering his age and potential hardship, the Tribunal concluded that these factors were outweighed by the seriousness of his criminal history and his prolonged unlawful presence.

Consequently, the Tribunal affirmed the decision to cancel Mr. Chan's Bridging A visa.