2104124 (Migration)

This matter concerned an appeal by an applicant, a citizen of India, against the decision to cancel his Bridging A visa. The applicant had initially travelled to Australia on a student visa in February 2015 and had subsequently applied for further student visas onshore. The Bridging A visa under review was granted in association with his most recent student visa application made in March 2020. The cancellation was initiated by the Department of Home Affairs based on information received from Western Australia Police indicating the applicant had been charged with multiple serious criminal offences, including possessing child exploitation material, aggravated sexual penetration without consent, and common assault.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e) permits the Minister to cancel a visa if satisfied that the visa holder's presence in Australia may be a risk to the health or safety of an individual or individuals, or to the health, safety or good order of the Australian community. The Tribunal was also required to consider all relevant circumstances in exercising its discretion, including the applicant's stated reasons for remaining in Australia and any hardship that might arise from cancellation.

The Tribunal found that the ground for cancellation under s.116(1)(e) was satisfied, noting that the power to cancel can arise on the possibility of risk, not requiring a certain foundation. The applicant had been charged with serious offences and had been remanded in custody before being released on bail. While the applicant provided submissions regarding his studies, his marriage to an Australian resident, and the financial investment in his education, the Tribunal noted that he had not completed any qualifications despite being in Australia since 2015. The Tribunal also considered the applicant's explanation for deferring studies and the subsequent cancellation of his enrolment due to his period of custody. Ultimately, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.