1903821 (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 a criminal offence under New South Wales law. The Tribunal was satisfied that the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, as the applicant had been charged with an offence. However, this ground did not mandate cancellation, requiring the Tribunal to consider whether to exercise its discretion to cancel the visa.

The legal issues before the Tribunal were whether the applicant's Bridging E visa should be cancelled, given the charge of a criminal offence, and how to weigh the various considerations relevant to the exercise of discretion. This involved compliance with Direction No. 63, which outlines the primary and secondary considerations to be taken into account when deciding whether to cancel a Bridging E visa under specific regulations. The Tribunal was required to determine the relative weight of these considerations, including the government's view on the rigorous application of cancellation grounds and the best interests of any children affected by the cancellation.

The Tribunal reasoned that while the applicant had pleaded not guilty and had not been convicted, a charge or suspicion of criminal conduct was sufficient to warrant consideration for visa cancellation. The grant of bail was considered a separate legal process and did not necessarily weigh in favour of the applicant regarding visa cancellation. The Tribunal gave significant weight to the serious nature of the offence with which the applicant was charged, noting that violence, particularly towards family, was viewed seriously. The Tribunal also acknowledged the importance of the best interests of children under 18, referencing both national laws and the Convention on the Rights of the Child.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa, concluding that, considering all circumstances, cancellation was appropriate.