1828705 (Migration)

The applicant, who held a Subclass 010 (Bridging A) visa, sought review of a delegate's decision to cancel his visa. The cancellation was based on the applicant's arrest and charging with a criminal offence, leading the delegate to believe his presence in Australia might pose a risk to the safety of a segment of the Australian community. The applicant contended he was innocent, that his bail indicated he was not a risk, and that visa cancellation would cause significant financial and emotional hardship to his wife and young son, as he was their primary provider.

The legal issue before the Tribunal was whether the applicant's Bridging Visa A should be cancelled under section 116(1)(e)(i) of the Migration Act 1958 (Cth), and if so, whether the discretion to cancel should be exercised. The Tribunal was required to determine if the applicant's presence in Australia presented a risk to the health, safety, or good order of the Australian community or a segment thereof, and to consider relevant matters in exercising the cancellation discretion, including guidance from the Department's Procedures Advice Manual (PAM3).

The Tribunal considered the applicant's response to the Notice of Intention to Cancel Visa (NOICC), which asserted his innocence and highlighted the unfairness of cancellation before a court outcome. The applicant also provided oral evidence, detailing his professional background, his application for a protection visa following political unrest, and the severe consequences of his detention, including his inability to work, provide for his family, and fund his legal defence. He explained that his detention had forced his wife to cease working due to the lack of family support for childcare, and that his separation from his family caused them considerable emotional hardship. The Tribunal found that it was not satisfied that the applicant posed a risk to the health, safety, or good order of the Australian community, and therefore was not satisfied that the ground for cancellation under section 116(1)(e) existed.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Subclass 010 (Bridging A) visa and substituted a decision not to cancel the visa.