1934409 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Bridging C visa held by an applicant who had been convicted of a drug supply offence in New South Wales. The applicant had been granted a conditional release order in relation to this conviction. The dispute arose when the Department of Home Affairs decided to cancel the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994, which permit cancellation if the Minister is satisfied that a prescribed ground applies, including a criminal conviction. The applicant failed to respond to communications from their agent and the Tribunal, and did not appear at the hearing.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Act was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal noted that a "conviction" for the purposes of the regulation included a finding of guilt. The applicant had not disputed their criminal history in their response to the notice of intention to consider cancellation, leading the Tribunal to be satisfied that the ground for cancellation existed. As the ground did not mandate cancellation under section 116(3), the Tribunal then considered whether to exercise its discretion.

In exercising its discretion, the Tribunal had regard to the applicant's written response to the notice of intention to consider cancellation, as well as the Department's Procedures Advice Manual. While acknowledging that the applicant had not breached other visa conditions and had not demonstrated past or present poor behaviour towards the Department, the Tribunal found these factors did not outweigh the seriousness of the criminal offending. The Tribunal emphasised that drug supply is a serious offence with significant harm to the community, and the commercial aspect of the applicant's offending, selling marijuana for money, aggravated the circumstances. The Tribunal found the applicant's claims of remorse unsubstantiated by evidence of steps taken to correct behaviour, such as drug rehabilitation. The Tribunal also gave no weight to the potential consequences for the applicant, such as immigration detention or the prohibition on applying for further visas under section 48 of the Act, as reasons not to cancel the visa.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Bridging C visa, concluding that the grounds for cancellation outweighed any reasons not to cancel.