1904956 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 010 (Bridging A) visa. The applicant had a history of previous temporary and student visas, and his application for a protection visa had been refused and affirmed on review. The cancellation decision was based on the applicant's criminal convictions and imprisonment for drug and traffic offences, as well as outstanding criminal matters and previous involvement as a driver in a fatal vehicle accident in his home country. The Administrative Appeals Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to determine if a prescribed ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out. This involved assessing whether the applicant met the criteria in regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth), which relate to criminal convictions. If a ground for cancellation was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances and government policy.

The Tribunal found that the prescribed ground for cancellation was met, as the applicant had been convicted of various driving offences in New South Wales, including driving with illicit drugs in his system and driving while disqualified, which resulted in a sentence of nine months imprisonment. In considering the exercise of discretion, the Tribunal had regard to factors including the applicant's purpose for being in Australia, his compliance with visa conditions, and the hardship that cancellation might cause. The Tribunal noted the applicant had been in Australia since 2015, had undertaken English language studies, and his protection visa application had been refused. While the applicant claimed hardship regarding drug rehabilitation and detention, he had elected not to engage in rehabilitation. The Tribunal also considered the applicant's family members remaining in Australia.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 010 (Bridging A) visa, finding that in light of all the circumstances and the relevant discretionary considerations, the visa should be cancelled.