2101698 (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 010 (Bridging A) visa by the Department of Home Affairs. The ground for cancellation was the applicant's conviction for an offence involving the possession and supply of a prohibited drug. The applicant sought to have the cancellation decision set aside, arguing that the visa should not have been cancelled.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, it should affirm the cancellation of the applicant's Bridging A visa. This required the Tribunal to consider various factors, including the purpose of the visa holder's stay, their compliance with visa conditions, the hardship that cancellation might cause, and the circumstances in which the ground for cancellation arose. The Tribunal was also required to consider the applicant's pending application for a substantive visa and the presence of their partner in Australia.

The Tribunal reasoned that the ground for cancellation did not mandate its automatic cancellation under section 116(3) of the Migration Act 1958 (Cth), thus requiring a discretionary assessment. While acknowledging the applicant's stated reasons for being in Australia, including oppression in Taiwan and a need to earn money to repay debts, and the presence of their partner, the Tribunal found that these factors did not outweigh the decision to cancel. Crucially, the Tribunal noted that the applicant's presence in Australia was permitted while awaiting the outcome of their substantive visa application, and that cancellation would not lead to their removal before that determination. The Tribunal also considered the applicant's financial situation and eligibility for a Bridging E visa with work rights, concluding that significant financial hardship was unlikely.

Ultimately, after considering all the circumstances, the Tribunal concluded that the visa should be cancelled and affirmed the Department's decision to cancel the applicant's Subclass 010 (Bridging A) visa.