1803442 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Bridging E (Class WE) visa. The applicant, who arrived in Australia in 2012, had been operating a business but had been in receipt of Centrelink benefits for several years due to a hand injury. He was married with three children residing in Iraq and had a girlfriend in Australia. The applicant had been charged with four fraud-related offences, which the police considered to have a strong prosecution case.

The Tribunal was required to determine whether the power to cancel the applicant's Bridging E visa should be exercised, having regard to Direction No. 63. This Direction mandates that primary considerations, including the government's view that prescribed grounds for cancellation should be applied rigorously and the best interests of any children under 18 in Australia, generally carry greater weight than secondary considerations. Secondary considerations included the impact on the family unit, hardship to the visa holder, the circumstances of the ground for cancellation, and the consequences of cancellation.

The Tribunal found that the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established. In exercising its discretion, the Tribunal gave due weight to the government's view regarding the rigorous application of cancellation grounds, noting the Australian government's low tolerance for criminal behaviour by non-citizens without substantive visas. While acknowledging the applicant's denial of the charges, the Tribunal found that the applicant had not satisfactorily explained his involvement in the transactions leading to the charges, particularly his actions concerning the registration and collection of a vehicle under his name with approved finance. The Tribunal concluded that the charges were serious and that the applicant's characterisation of himself as an innocent victim of fraud was not accepted.

The Tribunal found that no children under 18 in Australia would be affected by the cancellation. While acknowledging that the applicant's children in Iraq would be upset and that his family would likely become aware of the criminal charges, the Tribunal determined that these factors did not outweigh the seriousness of the charges and the applicant's lack of satisfactory explanation. The Tribunal ordered that the decision to cancel the applicant's Bridging E visa be affirmed.