Xiao (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Xiao, who sought review of a decision to cancel their Subclass 010 (Bridging A) visa. The cancellation was based on the applicant being a risk to the health or safety of individuals, as contemplated by section 116(1)(e)(ii) of the *Migration Act 1958* (Cth). This ground for cancellation arose due to criminal charges then pending against the applicant.

The central legal issue before the Tribunal was whether the ground for cancellation, as specified in section 116(1)(e)(ii) of the *Migration Act*, continued to exist. Specifically, the Tribunal had to determine if the applicant posed a risk to the health or safety of individuals, given that the criminal charges that formed the basis for this assessment had since been withdrawn.

The Tribunal reasoned that the power to cancel a visa under section 116(1)(e)(ii) is contingent on the existence of the specified ground. In this instance, the withdrawal of the criminal charges meant that the factual basis for the assessment of risk had been removed. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e)(ii) was made out.

As the Tribunal was not satisfied that the ground for cancellation existed, the power to cancel the applicant's visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 010 (Bridging A) visa.