1929724 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Bridging E (Class WE) visa, Subclass 050 (Bridging (General)), held by an Afghan citizen. The applicant had arrived in Australia in October 2018 and subsequently had a Partner visa application refused. He then applied for a Protection visa and an associated Bridging E visa. The Minister's delegate cancelled the applicant's Bridging E visa on the ground that he had been charged with contravening a domestic violence protection order issued against him, naming his wife as the aggrieved party. The applicant's representative conceded that this charge enlivened the power of cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the Bridging E visa should be cancelled, having regard to all relevant circumstances and in compliance with Direction No. 63. The primary legal issue was the weighing of competing considerations, including the government's view that prescribed grounds for cancellation should be applied rigorously and the best interests of any children under 18 affected by the cancellation. The Tribunal also had to consider secondary factors, such as the applicant's personal circumstances, mental health issues, the nature of the charges, and the potential hardship caused by cancellation.

In its reasoning, the Tribunal affirmed that the ground for cancellation was established due to the applicant being charged with contravening a protection order. In considering the exercise of discretion, the Tribunal gave considerably more weight to the prescribed grounds for cancellation than to the best interests of the children. While acknowledging the applicant's mental health issues, including potential PTSD, and the emotional hardship cancellation might cause, the Tribunal found these factors did not outweigh the seriousness of the charges. The Tribunal noted that the applicant's claims regarding the circumstances of the contravention, including a potential psychotic episode and the assertion that his wife was not harmed, were not adequately supported by evidence and were inconsistent with the nature of the threats alleged. The Tribunal concluded that the circumstances giving rise to the ground for cancellation were not beyond the applicant's control.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Bridging E visa, finding that, when considering all the circumstances, the visa should be cancelled.