1810600 (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 050 (Bridging (General)) visa. The applicant, who arrived in Australia as a boat arrival in 2013, had been charged with offences against Australian law. The dispute before the Tribunal was whether the ground for cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion. The decision was made by Justin Meyer.

The Tribunal was required to determine if a prescribed ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 existed. This regulation pertains to holders of bridging visas who have been charged with an offence. If a ground for cancellation was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to Direction No. 63, which outlines the primary and secondary considerations to be weighed.

The Tribunal found that the applicant had indeed been charged with offences, thus satisfying the prescribed ground for cancellation under section 116(1)(g). In considering the exercise of discretion, the Tribunal applied Direction No. 63, which mandates that primary considerations generally be given greater weight than secondary considerations. The primary considerations included the government's view that prescribed grounds for cancellation should be applied rigorously and the best interests of any children affected. Secondary considerations included the impact on the family unit, the degree of hardship, the circumstances of the ground for cancellation, and the possible consequences of cancellation. The Tribunal noted the applicant's difficult personal circumstances, including family issues and his own educational pursuits, but concluded that there was limited evidence of rehabilitation and that the applicant posed a more than negligible risk to the community. The Tribunal determined that the degree of hardship the applicant might experience did not outweigh the grounds for cancellation.

The Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa.