1924999 (Migration)

This matter concerned the review of a decision to cancel the applicant's Bridging E (Class WE) visa, Subclass 050. The applicant had been granted this visa on 15 December 2017, based on the premise that he had lodged a judicial review application concerning a substantive visa decision. However, the judicial review application in question related to a request for ministerial intervention, not a decision on a substantive visa. The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(aa) of the Migration Act 1958 (Cth) were met and, if so, whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether the grant of the Bridging E visa was based on a fact or circumstance that did not exist, as stipulated in section 116(1)(aa) of the Act. This section permits the Minister to cancel a visa if satisfied that the decision to grant it was based, wholly or partly, on a particular fact or circumstance that did not exist. The Tribunal considered whether the applicant's judicial review application qualified as a "decision in relation to a substantive visa," which was the stated basis for the visa grant.

The Tribunal reasoned that the applicant's judicial review application was indeed in relation to a request for ministerial intervention, not a substantive visa decision. Consequently, the factual basis upon which the Bridging E visa was granted did not exist. The Tribunal found that this was an administrative error by the department, rather than a deliberate misrepresentation by the applicant, particularly as he was subsequently granted another Bridging E visa based on his ministerial intervention request. The Tribunal noted that the applicant was aware of the error and that the cancellation would have no adverse consequences for his immigration status, as he held a valid bridging visa. Given these circumstances, the Tribunal concluded that the ground for cancellation under section 116(1)(aa) was established and that the cancellation was an appropriate means to correct the administrative error. The Tribunal affirmed the decision to cancel the visa.