2204377 (Migration)

This matter concerned an application for review of a delegate's decision to cancel the applicant's Subclass 010 (Bridging A) visa under section 116(1)(e) of the Migration Act 1958 (Cth). The delegate had cancelled the visa on the grounds that the applicant had been charged with certain offences and posed a risk to the health and safety or good order of the Australian community, particularly women. The applicant had been granted the bridging visa in conjunction with an application for review of a refusal of a protection visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) was established. This required the Tribunal to determine if the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community or a segment of it. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including government policy.

The Tribunal found that the ground for cancellation was established. The applicant had been charged with, and subsequently convicted of, common assault and assault with intent to commit a sexual offence, arising from an incident at a train station involving a young woman. The sentencing remarks described the applicant's actions as involving persistent following, grabbing, attempting to pull down the victim's pants, and cornering her. The Tribunal inferred from these facts and the applicant's criminal convictions that he posed a risk to the health and safety of the Australian community, and in particular, women. In considering the exercise of discretion, the Tribunal noted the applicant's mental and physical health issues, exacerbated by an attack in prison and subsequent immigration detention, and the lack of health records. It also considered the applicant's stated responsibilities, including caring for his sister's children and providing financial support to his family overseas, as well as the alternative of lengthy detention if the visa were cancelled.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 010 (Bridging A) visa. The Tribunal concluded that, despite the mitigating factors presented, the circumstances as a whole warranted the cancellation of the visa.