Wang (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Visitor (Class FA) visa, Subclass 600, held by the applicant, Ms. Wang. The cancellation was based on the ground that her presence in Australia posed a risk to the health, safety, or good order of the Australian community, pursuant to section 116(1)(e)(i) of the Migration Act 1958 (Cth). The applicant had declared herself fully vaccinated with an Australian-approved vaccine upon arrival, but the vaccine she had received in China was not recognised by the Therapeutic Goods Administration.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) of the Act was made out, and if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The Tribunal found that the applicant's initial declaration was incorrect as the vaccine she received was not Australian-approved, and her presence in Australia at that time did pose a potential risk to the health, safety, or good order of the community. However, the Tribunal also noted that the applicant subsequently received two doses of an approved vaccine in Australia.

In exercising its discretion, the Tribunal considered several factors. It gave weight in favour of setting aside the cancellation decision to the applicant's compelling reason for travel, which was to assist her son and daughter-in-law with childcare for their three young children, and her history of compliant visa conduct on previous visits. The Tribunal also considered the best interests of the applicant's grandchildren, finding it would be in their best interests to be cared for by their grandparents. Conversely, the Tribunal gave no weight to the potential negative consequences for the applicant, such as limitations on future visa applications, as these were intended legal outcomes of a cancellation.

Ultimately, the Tribunal concluded that while the ground for cancellation was established, the discretionary factors weighed in favour of setting aside the decision. The Tribunal ordered that the decision to cancel the applicant's visa be set aside.