Shanmugam (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging A (Class WA) visa of Mr. Shanmugam. The cancellation was based on the ground that his presence in Australia posed a risk to the health, safety, or good order of the Australian community, specifically a segment of the community. Mr. Shanmugam had been charged with serious criminal offences, including sexual assault, and was awaiting trial.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e)(i) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal acknowledged the presumption of innocence and the high standard of proof required in criminal proceedings. It also considered the guidelines regarding the decision to prosecute, which emphasise the public interest and the reasonable prospect of conviction.

The Tribunal found that the ground for cancellation was made out, as the alleged conduct, if proven, would indicate a risk to the community. However, in considering the exercise of discretion, the Tribunal noted that subsequent to the cancellation of Mr. Shanmugam's Bridging A visa, the Department of Home Affairs had granted him a Criminal Justice (ZB-951) visa. This visa was granted on the basis that his presence in Australia was required for the administration of criminal justice, and the Department had assessed that he did not represent a danger to individuals and people in general, had been cooperative, and had no criminal convictions. The Tribunal considered it contradictory and unreasonable for the Department to cancel a visa due to a risk to the community and then subsequently grant a visa allowing the individual to remain at liberty in the community for criminal justice purposes.

Consequently, the Tribunal set aside the decision to cancel Mr. Shanmugam's Bridging A visa and substituted a decision not to cancel it, finding that it would be unreasonable to uphold the cancellation in light of the Department's subsequent actions.