1821402 (Migration)

This case concerned an applicant who had been granted a Bridging C visa in relation to a protection visa application. The applicant had arrived in Australia in 2008, his initial visa expired in 2009, and he subsequently became an unlawful non-citizen. In May 2018, he was convicted of threat to damage property and unlawful assault, for which he was fined. Following this conviction, the Department of Home Affairs issued a notice of intention to consider cancellation of his visa, and the delegate decided to cancel his Bridging C visa. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(g) allows for visa cancellation if the Minister is satisfied that a prescribed ground applies, which in this instance was regulation 2.43(oa) of the Migration Regulations 1994, requiring the holder of a temporary visa to have been convicted of an offence against a law of the Commonwealth, a State, or a Territory. The Tribunal also had to consider the applicant's explanation for his conviction and any other relevant circumstances in exercising its discretion.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established, as the applicant had been convicted of offences. The Tribunal then considered the exercise of discretion. While the applicant disputed the details of the incident leading to his conviction, claiming he accepted responsibility to prevent his niece from being placed in foster care, the Tribunal gave no weight to this explanation in favour of the applicant. The Tribunal noted that the applicant's protection visa application would be assessed separately and would provide him with an opportunity to remain in Australia until that assessment was finalised. Having considered all relevant circumstances, including the applicant's submissions, the Tribunal concluded that the decision to cancel the applicant's Bridging C visa should be affirmed.