2203768 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Bridging E (Class WE) visa, subclass 050. The applicant, who had arrived in Australia as an illegal maritime arrival in 2013, was granted a Bridging E visa in August 2013. The visa was subsequently cancelled under section 116(1)(g) of the *Migration Act 1958* (Cth) on 15 November 2016, after the applicant was charged with a number of criminal offences. The applicant had been in immigration detention since October 2017. The Administrative Appeals Tribunal (AAT) was required to consider whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant's Bridging E visa should be cancelled, given that the ground for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) had been established, as the applicant conceded he had been charged with an offence. The Tribunal was required to consider this discretion in accordance with Direction No. 63, which mandates the consideration of specified primary and secondary factors. The Tribunal also had regard to the applicant's individual circumstances, including his lengthy detention, his recent de facto relationship, his mental health, and the support he received from his partner's family.

The Tribunal reasoned that while the ground for cancellation was established and the government's view favoured rigorous application of cancellation grounds, the applicant's individual circumstances warranted careful consideration. The Tribunal noted that the applicant had a partner with whom he intended to marry, and that the partner's family provided social support. The applicant's mental health and the potential impact of isolation were also considered. The Tribunal found that the applicant's lengthy detention and the circumstances of his relationship and mental health were mitigating factors that weighed against cancellation.

Ultimately, the Tribunal set aside the decision to cancel the applicant's Bridging E visa. The Tribunal concluded that the applicant's individual circumstances, including the impact on his relationship and mental health, were significant mitigating factors that outweighed the grounds for cancellation.