2014053 (Migration)

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) of a decision to cancel the applicant's Subclass 030 (Bridging C) visa. The applicant had been convicted of an offence involving the cultivation of cannabis in Victoria and sentenced to a period of imprisonment. The AAT was required to consider whether to exercise its discretion not to cancel the visa, taking into account the applicant's circumstances and the potential consequences of cancellation.

The primary legal issue before the Tribunal was whether to exercise its discretion under section 116(1)(g) of the *Migration Act 1958* (Cth) to cancel the applicant's visa, given his criminal conviction. The Tribunal also had to consider the mandatory legal consequences of cancellation, including the applicant becoming unlawful, liable for detention, and potentially unable to make a valid further visa application. The Tribunal was also mindful of international obligations, such as non-refoulement, and the ongoing health concerns related to COVID-19.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established, as the applicant had been convicted of a relevant offence. However, after considering the applicant's personal circumstances, including his release from prison, his assertion of reform, his family situation in Vietnam and Australia, and the impact of his circumstances on his father's health, the Tribunal decided not to cancel the visa. The Tribunal reasoned that cancelling the applicant's bridging visa would render him unlawful and subject to immigration detention for an indeterminate period, particularly given the uncertainty surrounding his pending protection visa review and the COVID-19 pandemic. These weighty consequences, in the Tribunal's view, outweighed the considerations for cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 030 (Bridging C) visa.