1902674 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Bridging E visa. The applicant had been charged with serious criminal offences, including armed with intent to commit an indictable offence and wound with intent to cause grievous bodily harm. The applicant's representative had incorrectly claimed that the charges had been withdrawn, a claim later disproven by the applicant and a solicitor. The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were met and, if so, whether the Bridging E visa should be cancelled, considering the relevant government policy and the specific circumstances of the case.

The Tribunal was required to consider the prescribed grounds for cancellation under regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, which applied where an applicant had been charged with certain offences. The applicant's representative's assertion that the charges were withdrawn was found to be demonstrably false, with both the applicant and a solicitor confirming the charges remained active. Consequently, the Tribunal was satisfied that the ground for cancellation existed. The Tribunal then proceeded to consider whether to exercise its discretion to cancel the visa, applying Direction No. 63, which mandates consideration of primary and secondary factors.

In exercising its discretion, the Tribunal weighed the primary considerations, including the government's view that prescribed grounds for cancellation should be applied rigorously, and the best interests of any children under 18. The Tribunal found no dependent children would be affected by cancellation. Regarding secondary considerations, the Tribunal noted the applicant had no partner or children in Australia and had been in the country for less than two years. While acknowledging the applicant's friendships and potential preference to remain, the Tribunal was not convinced of significant emotional hardship to family members in Australia. The Tribunal also considered the applicant's father's health concerns in China, noting he was receiving medical treatment and that the applicant could maintain contact. Despite accepting that the father and family would be disappointed by cancellation, the Tribunal concluded, on balance, that this did not outweigh the grounds for cancellation. The Tribunal affirmed the decision to cancel the Bridging E visa.