2210577 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 030 (Bridging C) visa. The applicant, an Indian national, had been convicted of eight criminal charges in Victoria between July 2021 and April 2022, including persistent contravention of a Family Violence Intervention Order, contravention of a Family Violence Intervention Order, contravention of a conduct condition of bail, and unlawful assault. The cancellation decision was made under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth).

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) and regulation 2.43(1)(oa) was established, and if so, whether the discretion to cancel the visa should be exercised. Regulation 2.43(1)(oa) prescribes that a temporary visa may be cancelled if the holder has been convicted of an offence against a law of the Commonwealth, a State, or Territory. The applicant did not dispute his convictions.

The Tribunal found that the ground for cancellation under section 116(1)(g) and regulation 2.43(1)(oa) was established due to the applicant's convictions. However, the Tribunal noted that this ground did not mandate cancellation under section 116(3) of the Act, meaning the decision-maker had a discretion to cancel the visa. In exercising this discretion, the Tribunal considered the applicant's compelling need to remain in Australia to pursue his Protection visa application, which weighed against cancellation. It also considered the applicant's compliance with visa conditions throughout his immigration history, which also weighed against cancellation. Crucially, however, the Tribunal noted a lack of information regarding the hardship cancellation might cause the applicant, as he failed to attend the hearing or provide information to the Tribunal or the Department in response to the Notice of Intention to Consider Cancellation. The Tribunal also expressed regret regarding the applicant's representative failing to inform them that the applicant had not yet responded, leading to wasted resources.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be affirmed. This outcome appears to stem from the lack of information provided by the applicant regarding potential hardship, despite the Tribunal acknowledging factors that weighed against cancellation.