1825051 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Bridging E (Class WE) visa held by a New Zealand citizen who had resided in Australia since 2009. The applicant was charged with contravening a domestic violence order and choking, suffocation, or strangulation in a domestic setting, both offences under state law. These charges arose from a domestic dispute in April 2018, following which the applicant was initially remanded in custody before being released on conditional bail. The Department of Home Affairs subsequently cancelled the applicant's visa, and he was issued a bridging visa which was then also cancelled on the grounds of the criminal charges.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's Bridging E visa was justified. This involved determining if the prescribed ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth), read with Regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, was made out. If the ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances and in compliance with Direction No. 63.

The Tribunal found that the ground for cancellation was established, as charges had been laid against the applicant for the specified offences. However, the cancellation was not mandatory. In exercising its discretion, the Tribunal was required to consider primary and secondary considerations as outlined in Direction No. 63. The primary considerations included the government's view that prescribed grounds should be applied rigorously and the best interests of any children affected by the cancellation. Secondary considerations included the impact on the family unit, hardship to the visa holder, the circumstances of the ground for cancellation, and possible consequences. The Tribunal noted the applicant had no prior criminal record, although an incident in January 2018 resulting in a domestic violence order was considered. The applicant presented evidence of a tentative diagnosis of post-traumatic stress disorder, for which he was receiving professional treatment, and his wife supported the view that the alleged incidents were uncharacteristic and stemmed from this condition.

Weighing all the circumstances, the Tribunal concluded that the Bridging E visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 050 (Bridging (General)) visa.