1805868 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of the applicant's Subclass 030 (Bridging C) visa. The applicant, an unlawful non-citizen, had breached a condition of her visa by working in Australia without permission. The Department had affirmed its decision to cancel the applicant's visa.

The Tribunal was required to determine whether the applicant's Bridging C visa should be cancelled, considering the discretion afforded to it under the Migration Act 1958 (Cth). Specifically, the Tribunal had to weigh the circumstances of the breach against the potential hardship to the applicant, and consider the purpose of the visa and the applicant's need to remain in Australia while a substantive visa application was processed.

The Tribunal acknowledged that the ground for cancellation did not mandate cancellation under section 116(3) of the Migration Act, thus requiring an exercise of discretion. In its reasoning, the Tribunal considered the applicant's purpose for remaining in Australia, which was to await the processing of a substantive visa application, and accepted that there was a need for her to remain lawfully during this period. However, the Tribunal gave greater weight to the circumstances in which the ground for cancellation arose, noting the applicant's admitted breach of condition 8101 by working illegally. While acknowledging the potential hardship to the applicant, including psychological distress and difficulties in returning to Fiji, the Tribunal concluded that the cancellation of the bridging visa would not impede the processing of her substantive visa application.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 030 (Bridging C) visa, finding that the circumstances warranted cancellation.