Kennedy (Migration)

This matter concerned an application for review of a decision by the Department to cancel the applicant's Subclass 010 (Bridging A) visa. The cancellation was based on the ground that the applicant's presence in Australia was, or might be, a risk to the health or safety of individuals, pursuant to section 116(1)(e)(ii) of the Migration Act 1958 (Cth). The applicant had been charged with serious criminal offences, including those involving a child and drug offences. The review was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. The Tribunal found that the serious nature of the charges, supported by evidence considered sufficient for prosecution by the Director of Public Prosecutions, meant that the applicant posed a risk to the complainants, thus satisfying the ground for cancellation under section 116(1)(e)(ii). However, the Tribunal then considered its discretion, noting the applicant's submissions regarding potential detention, impact on family, and lack of prior visa non-compliance.

Crucially, the Tribunal identified a significant inconsistency in the Department's actions. While the Department cancelled the applicant's bridging visa due to perceived risk, it subsequently granted the applicant a new bridging visa (a Bridging E visa) after the review application was lodged. This subsequent visa required the applicant to not engage in criminal conduct, a condition that appeared to contradict the Department's earlier assessment of risk. The Tribunal found it illogical and unreasonable to uphold the cancellation of the original bridging visa when the Department had, in effect, permitted the applicant to remain in the community as a lawful non-citizen on a subsequent bridging visa, implicitly satisfied that he would abide by its conditions.

Consequently, the Tribunal set aside the Department's decision to cancel the applicant's Subclass 010 (Bridging A) visa and substituted a decision not to cancel the visa.