2120128 (Migration)

The applicant, a Fijian citizen holding a Bridging C (Class WC) visa, sought review of the Minister's decision to cancel his visa. The dispute arose from the applicant's criminal convictions in New South Wales for offences including common assault (domestic violence), contravening an apprehended domestic violence order, driving unlicenced, and mid-range drink driving, and damaging property. The applicant had Australian citizen wife and children, and a partner visa application was pending. The matter was heard by R. Skaros.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa was correct. This involved determining if the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were established, and if so, whether the discretion to cancel the visa should be exercised in the circumstances of the case. The Tribunal was required to consider the prescribed grounds for cancellation under regulation 2.43 of the Migration Regulations 1994 (Cth), specifically regulation 2.43(1)(oa), which applies to the holder of a temporary visa convicted of an offence.

The Tribunal found that the applicant had indeed been convicted of offences against the law of New South Wales, satisfying the ground for cancellation under section 116(1)(g). However, as this ground did not mandate cancellation under section 116(3), the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the applicant's submissions, including his efforts to address alcohol abuse, his cessation of drinking since May 2021, and the positive impact this had on his behaviour and family relationships. It also considered letters of support from his wife and father-in-law, highlighting the importance of the applicant to his Australian citizen children and the potential detriment to the family unit if he were removed from Australia. The Tribunal weighed these mitigating circumstances against the seriousness of the offending.

Ultimately, the Tribunal concluded that the circumstances favouring the non-cancellation of the visa substantially outweighed those favouring cancellation. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Bridging C visa.