1837251 (Migration)

This matter concerned an application for judicial review of a decision to cancel the applicant's Bridging B visa. The applicant had been charged with and convicted of selling and trafficking a commercial quantity of illicit drugs, leading to a sentence of seven years imprisonment. The Federal Circuit Court had previously remitted the matter to the Tribunal, finding that the Tribunal had miscarried its discretion by failing to consider the consequences of cancellation on the applicant's pending Remaining Relative visa application and his potential removal from Australia.

The primary legal issue before the Tribunal was whether the applicant's Bridging B visa should be cancelled under section 116(1)(e) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder's presence in Australia poses a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal was required to determine if the applicant's criminal conduct, specifically the drug trafficking offence, established such a risk, and if so, whether to exercise its discretion to cancel the visa.

The Tribunal considered the Department's Procedures Advice Manual (PAM3), which guides delegates to draw a logical link between the nature of an offence and the risk posed to the community. While PAM3 notes that property offences are not typically considered a risk to health or safety, the Tribunal found that the delegate had adequately articulated the risk associated with the applicant's drug trafficking. The delegate referenced the Australian Government's National Drug Strategy and information about the specific drug, concluding that the distribution and sale of illicit drugs, and the drug's effects on users, posed a risk to the health, safety, and good order of the Australian community. The Tribunal affirmed the decision to cancel the applicant's visa, finding that, considering the severity of the crime and the established risk, cancellation was warranted.