Shah (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the applicant's Bridging A (Class WA) visa. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the good order of the Australian community, as the applicant had been charged with serious sexual offences. The applicant contended that he feared punishment in Pakistan for alleged crimes committed in Australia.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The legal issue involved interpreting the phrase "good order of the Australian community" and assessing the risk posed by the applicant, considering the pending criminal charges. The Tribunal also had to consider the applicant's claims regarding potential harm in Pakistan and the impact of cancellation on his studies and family.

The Tribunal reasoned that while the applicant had not been convicted, the seriousness of the charges and the policy of the Victorian Director of Public Prosecutions, which requires reasonable prospects of conviction and public interest for a prosecution to proceed, indicated that the ground for cancellation was met. The Tribunal found that the alleged offending, if true, demonstrated a risk to vulnerable members of the community. However, the Tribunal noted that the Department subsequently granted the applicant a Bridging E visa after the cancellation of his Bridging A visa, imposing a condition that he must not engage in criminal conduct. The Tribunal found it illogical that the Department would cancel a visa due to a risk to the community and then grant another visa based on a satisfaction that the applicant would not engage in criminal conduct. This subsequent action by the Department was considered highly persuasive, leading the Tribunal to conclude that it would be unreasonable not to set aside the cancellation decision.

Consequently, the Tribunal set aside the decision to cancel the applicant's Bridging A visa and substituted a decision not to cancel it.