1935434 (Migration)

The applicant sought judicial review of a decision to cancel his Bridging E (Class WE) visa. The Minister had cancelled the visa under section 116(1)(aa) of the Migration Act 1958 (Cth) on the ground that the visa was granted based on a fact or circumstance that did not exist. The applicant argued that he had applied for judicial review of a decision to refuse a substantive visa, which was the basis for the grant of his Bridging E visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(aa) was made out. This required determining if the applicant's Bridging E visa was granted on the basis that he had applied for judicial review of a decision to refuse a substantive visa, and if that factual premise was indeed correct. If the 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, including the applicant's claims of hardship and non-refoulement obligations.

The Tribunal found that the applicant's Bridging E visa was granted on the incorrect assumption that he had applied for judicial review of a substantive visa refusal. While the applicant had filed an application for leave to appeal, this was against a decision not to refer a section 48B request to the Minister, not a review of a substantive visa refusal as required by the visa conditions. Consequently, the Tribunal was satisfied that the ground for cancellation under section 116(1)(aa) was established. In considering its discretion, the Tribunal noted that the applicant's protection claims had been previously rejected and found not to be owed Australia's protection. While acknowledging the applicant's claims of hardship, including mental health issues and family dependence, the Tribunal concluded that these did not outweigh the established ground for cancellation.

The Tribunal affirmed the decision to cancel the applicant's Bridging E visa.