Yao (Migration)

This matter concerned an appeal by Rui Yao, also known as Le Yao, a Chinese citizen, against the cancellation of his Subclass 500 (Student) visa. The visa had been granted on 13 November 2017. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation following the applicant's arrest and charge with serious offences under the *Crimes Act 1940* (NSW) on 24 November 2018. Although subsequently convicted of the lesser offence of reckless wounding, the applicant's presence in Australia was considered a potential risk to the health, safety, or good order of the Australian community.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) of the *Migration Act 1958* (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e) permits cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community. The Tribunal considered the meaning of "good order" in this context, referencing *Tien v MIMA* (1998) 89 FCR 80, which indicated it concerns activities with a public impact or that might disrupt the observance of the law or create public disruption.

The Tribunal reasoned that the applicant's criminal conviction, even for a lesser offence, satisfied the ground for cancellation under s 116(1)(e), as the power to cancel can arise from a possibility of risk. Furthermore, the Tribunal found that the applicant was not a genuine student, noting significant periods of non-study, cancelled course enrolments, and the application for a Protection visa followed by a Skilled visa application as a de facto partner. These actions indicated a change in the applicant's purpose for remaining in Australia, which was not consistent with the conditions of his Student visa.

The Tribunal concluded that, considering all the circumstances, the discretion to cancel the visa should be exercised. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.