1820025 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Bridging Visa A (Class WA), subclass 010. The applicant, who had arrived in Australia in December 2016 and subsequently applied for a Protection visa, had been granted the Bridging Visa A on 22 February 2017. The cancellation was based on the applicant having been convicted of offences against a law of a State. The applicant contended that if he were required to return to Fiji, he feared for his safety, expressed remorse for his convictions, and desired to be a good citizen and contribute to Australia.

The primary legal issue before the Tribunal was whether the Minister's discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation, namely conviction of an offence, had been established under s 116(1)(g) of the Migration Act 1958 (Cth) and r 2.43(1)(oa) of the Migration Regulations 1994. The Tribunal was required to consider all relevant circumstances, including matters of government policy and the specific circumstances of the applicant, to determine if cancellation was warranted.

The Tribunal found that the ground for cancellation was made out, as the applicant acknowledged his convictions. In considering the exercise of discretion, the Tribunal had regard to various factors. It noted that the applicant's Protection visa application was under review by the Tribunal, which could constitute a compelling need to remain in Australia, although the possibility of obtaining a Bridging Visa E or continuing detention pending the review was also acknowledged. The Tribunal found no conditions attached to the Bridging Visa A, and no dependent visa holders would be affected by cancellation. The Tribunal also considered the mandatory legal consequences of cancellation, including becoming an unlawful non-citizen, potential detention and removal, and the s 48 bar, as well as the potential impact of Public Interest Criterion 4013. The applicant's fear of returning to Fiji and his claims for protection were noted as a separate matter under review by the Tribunal, and the cancellation of the Bridging Visa A would not prevent him from awaiting the outcome of that review. After weighing these factors, the Tribunal affirmed the decision to cancel the applicant's Bridging Visa A.