1825643 (Migration)

The applicant sought review of a decision to cancel their Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The Minister's delegate had cancelled the visa under section 116(1)(b) of the Migration Act 1958 (Cth), which permits cancellation if the Minister is satisfied that the visa holder has not complied with a condition of their visa. The applicant's visa condition 8101 prohibited them from engaging in work in Australia. The applicant also had pending criminal charges for common assault and assault with an act of indecency.

The Tribunal was required to determine whether the ground for cancellation existed, specifically whether the applicant had engaged in work in contravention of condition 8101. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances. This involved assessing factors such as the purpose of the applicant's stay, their compliance with visa conditions, the degree of hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose.

The Tribunal found that the ground for cancellation under section 116(1)(b) was established. Evidence, including a police statement of facts and employee rosters/timesheets, indicated that the applicant was driving around a farm for other workers and engaging in work activities. While the applicant denied making certain statements during a departmental interview and claimed to be volunteering, the Tribunal considered the information from the police statement of facts regarding the applicant driving a vehicle for other workers on at least two occasions in July 2018. The Tribunal noted that the applicant had remained in Australia for approximately six years beyond the initial purpose of their short-term visa, having made numerous unsuccessful visa applications. While the applicant claimed to be in a relationship of two to three months and had two children in India, the Tribunal was not satisfied that these circumstances constituted a compelling reason to remain in Australia or that the applicant would face a degree of hardship that would warrant preventing cancellation.

The Tribunal affirmed the decision to cancel the applicant's visa.