ZOU (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 163 (State/Territory Sponsored Business Owner (Provisional)) visa held by the applicant, Mr. Zou. The cancellation was based on the ground that the applicant's presence in Australia posed a risk to the safety of an individual, specifically in relation to a provisional apprehended violence order (PAVO) and associated criminal charges. The applicant had been charged with offences following an incident on 21 May 2017, which also led to the enforcement of a PAVO prohibiting him from approaching or contacting a protected person.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The legal issue was whether the existence of a PAVO and pending charges, even without a conviction, constituted a sufficient risk to warrant cancellation. The Tribunal also had to consider the applicant's circumstances, including his ties to Australia, compliance with visa conditions, and the potential hardship that cancellation might cause, in deciding whether to affirm the delegate's decision.

The Tribunal reasoned that the ground for cancellation under s.116(1)(e) did not require a conviction or a certainty of risk, but rather a possibility that the visa holder's presence might be a risk to the safety of an individual. The applicant acknowledged the information regarding the PAVO and charges. While the applicant presented arguments regarding the weakness of the case against him, his compliance with bail conditions, his long-term residence in Australia, and his efforts to address alcohol consumption, the Tribunal found that the existence of the PAVO and the underlying incident were sufficient to establish the ground for cancellation. In considering the exercise of discretion, the Tribunal acknowledged the applicant's established life in Australia, his employment, and the potential hardship to him and his mother. However, it ultimately concluded that, on balance, the risk to safety outweighed these considerations.

The Tribunal affirmed the decision to cancel the applicant's Subclass 163 visa.