2212473 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging E (Class WE) visa granted to the applicant, who had applied for a protection visa. The dispute arose from criminal charges and convictions, including a breach of an intervention order and other offences, which led to imprisonment and other penalties. The applicant's visa was subject to cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, which relate to criminal convictions.

The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa. Specifically, the Tribunal had to consider if the applicant had been charged with assault as stated in the notice of intention to consider cancellation, and if the breach of the intervention order was a sufficient ground for cancellation. If the ground was established, the Tribunal then had to consider the relevant circumstances and government policy, as guided by Direction No. 63, in deciding whether to cancel the visa.

The Tribunal found that while there was insufficient evidence to confirm a charge of assault, the applicant was charged with and convicted of breaching an intervention order, which was a sufficient ground for cancellation under the Regulations. However, in exercising its discretion, the Tribunal weighed various factors, including the applicant's long period of immigration detention, documented mental health issues and treatment, alcohol and drug use, and the potential consequences of cancellation, such as non-refoulement obligations and the possibility of indefinite detention. The Tribunal concluded that these finely balanced factors, coupled with considerable hesitation, led it to set aside the cancellation decision.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 050 (Bridging (General)) visa.