Voracova (Migration)

This matter concerned an appeal by Ms Voracova against the cancellation of her visa. Ms Voracova's visa was cancelled on 6 January 2022, and she was subsequently placed in immigration detention before departing Australia on a bridging visa. She sought review of the cancellation decision by the Tribunal, providing submissions regarding her intention to compete in international tennis tournaments and the difficulties she anticipated in obtaining visas for other countries due to the Australian visa cancellation. The Tribunal was required to determine whether the ground for cancellation was established and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issues before the Tribunal were whether the ground for cancellation, specifically that Ms Voracova's presence in Australia was or might be a risk to the health of the Australian community, was established. This involved considering the timing of the assessment of risk, particularly as Ms Voracova was outside Australia at the time of the Tribunal's decision. The Tribunal also had to consider whether Ms Voracova's prior COVID-19 infection rendered any potential risk negligible, and whether the cancellation decision should be exercised having regard to all relevant circumstances, including government policy.

The Tribunal rejected Ms Voracova's argument that the risk was remote because she was outside Australia and not intending to return immediately. It reasoned that the relevant question under section 116(1)(e)(i) of the Migration Act 1958 (Cth) concerned whether her presence *would or might be* a risk, not whether there was a current risk of her presence in Australia. The Tribunal acknowledged that assessing risk when a visa holder is outside Australia can be artificial, but found that in this case, the issue was not theoretical as there remained a possibility of her return to Australia before her visa expired. The Tribunal also considered Ms Voracova's prior COVID-19 infection but did not find it sufficient to establish that any risk was negligible.