1829778 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The applicant had been charged with an offence against a law of a state of Australia, which constituted a ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether to exercise its discretion to cancel the applicant's visa, having regard to Direction No. 63, which provides guidance on the cancellation of Bridging E visas under section 116(1)(g) and regulation 2.43(1)(p) or (q). The Direction outlines objectives, general guidance, and principles for decision-makers, emphasizing an expectation that such visas ought to be cancelled when visa holders are charged with criminal offences. It also specifies primary and secondary considerations to be taken into account, with primary considerations generally carrying greater weight.

The Tribunal considered the government's view that prescribed grounds for cancellation should be applied rigorously and the best interests of any children affected by cancellation as primary considerations. Secondary considerations included the impact on the family unit, the degree of hardship to the visa holder, the circumstances of the cancellation ground, possible consequences of cancellation, and any other relevant matters. While acknowledging the ground for cancellation existed and the general expectation for cancellation in such circumstances, the Tribunal weighed all relevant factors. It found that the applicant had been honest and forthright with the department, was likely to continue complying with bail and visa conditions, and that the degree of hardship for the applicant and their family if the visa were cancelled was significant.

Ultimately, the Tribunal concluded that, considering the circumstances as a whole, the 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.