2002034 (Migration)

This matter concerned an appeal before Senior Member Kate Millar of the Migration Review Tribunal concerning the cancellation of a Bridging A (Class WA) visa, Subclass 010. The applicant, who was in prison awaiting sentencing for serious criminal offences, sought to have the cancellation decision set aside.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(e) of the Migration Act 1958 (Cth) was correct, and if so, whether the discretion to cancel the visa should be exercised in the circumstances. Section 116(1)(e) permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal also considered the applicant's eligibility for a further bridging visa while his protection visa application was pending.

The Tribunal noted that the ground for cancellation under section 116(1)(e) could be established on the possibility of risk, supported by the laying of charges. The applicant had pleaded guilty to charges including aggravated robbery, aggravated indecent assault, and aggravated burglary. However, the Tribunal found that the cancellation of the Bridging A visa was not mandatory. In exercising its discretion, the Tribunal considered the applicant's mental health issues, his long period of residence in Australia, and the fact that he was in custody. Crucially, the Tribunal determined that cancelling the bridging visa would not affect the determination of his pending protection visa application, nor would it result in his immediate removal from Australia, as he could be granted a further bridging visa while in prison.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.