Chang (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, Mr. Chang. The dispute centred on whether the applicant posed a risk to the health, safety, or good order of the Australian community, a ground for visa cancellation under section 116 of the Migration Act 1958 (Cth). The applicant, who was offshore at the time of the review, had a criminal conviction for domestic violence offences for which he served a custodial sentence.

The Tribunal was required to determine if the ground for cancellation under s 116(1)(e)(i) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. This involved interpreting the phrase "risk to the health, safety or good order of the Australian community or a segment of the Australian community," considering the impact of past conduct on future risk, and assessing relevant circumstances in the exercise of discretion. The Tribunal also considered the applicant's submissions regarding his remorse and promise of future good conduct.

In its reasoning, the Tribunal affirmed that the expression "good order of the Australian community" encompasses activities that disrupt the proper administration of law or create public disruption. It noted that the amendments to s 116(1)(e) allowing for cancellation where a visa holder "may be" or "might be" a risk, meant that a direct, solid, or certain foundation for risk was not required, and past events supported by charges could engage the provision. The Tribunal found the domestic violence conviction and custodial sentence to be serious, reflecting the gravity of the offences. Despite the applicant's assurances, the Tribunal concluded that the seriousness of the offences, as evidenced by the custodial sentence, meant that the ground for cancellation was made out and the discretion to cancel the visa should be exercised.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.