1802717 (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Bridging C visa by the Department of Home Affairs. The applicant had initially entered Australia on visitor and student visas, and after a partner visa application was lodged, he was granted a Bridging A visa, which was later refused. A Bridging C visa was subsequently granted while the applicant pursued a Federal Circuit Court appeal against a previous refusal of his partner visa application. The appeal was finalised in favour of the Department.

The primary legal issues before the Tribunal were whether the applicant's visa should be cancelled under section 116(1)(g) of the Migration Act 1958 (Cth) due to criminal convictions, and whether the Tribunal should affirm the Department's decision to cancel the visa. The Tribunal was required to consider the relevant circumstances in exercising its discretion to cancel the visa, including matters outlined in the Department's Procedures Advice Manual (PAM3), such as the purpose of the applicant's stay, his compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal reasoned that while there were no specific matters mandated by the Act or Regulations for consideration in the exercise of the cancellation discretion, it had regard to relevant circumstances including departmental guidelines. The applicant's claim of a compelling need to remain in Australia was significantly undermined by his voluntary departure for Greece shortly after his Federal Circuit Court appeal concluded. Furthermore, the Tribunal gave no weight to the applicant's claim of being unaware of his work rights ceasing, attributing this to a departmental error in notification. The applicant's claims of financial hardship were also given little weight, as he had voluntarily chosen to reside in Greece since February 2018, negating his assertion of hardship due to economic conditions there, and his sponsor was financially independent. The Tribunal also noted that while a s.375A Certificate was presented, it chose not to utilise the adverse information contained within it, as sufficient grounds for cancellation were established by the applicant's criminal convictions, which were readily available from the Department's decision record.

The Tribunal concluded that the decision to cancel the applicant's visa should be affirmed.