2215968 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking to set aside the cancellation of his Bridging E (Class WE) visa, Subclass 050 (Bridging (General)). The applicant had arrived in Australia by boat and was initially considered an unauthorised maritime arrival. He had previously been granted a Humanitarian Stay (Temporary) (Subclass 449) visa and later a Bridging visa in association with a Safe Haven Enterprise visa (SHEV) application lodged by a relative. It was the cancellation of this first bridging visa, granted on 20 October 2016, that was the subject of the review.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's Bridging E visa was valid. This involved determining whether the visa had already ceased to be in effect at the time of the cancellation decision, and consequently, whether there was a valid visa in existence to be cancelled. The Tribunal was also required to consider the scope of its review powers, particularly in circumstances where the primary decision-maker may have erred.

The Tribunal reasoned that, in a remitted matter, the Minister had conceded that the applicant's visa had ceased on 8 September 2017, which was prior to the delegate's purported decision to cancel the visa on 11 August 2017. The Tribunal noted that it had fallen into jurisdictional error by relying on the incorrect premise that the visa had not ceased, which was a critical factor in the exercise of its discretion to cancel the visa. The Tribunal applied the principle that cancellation decisions under section 116 of the Migration Act 1958 (Cth) are reviewable even if the primary decision was invalid or based on an incorrect premise, and that the Tribunal's powers on review are informed by the powers available to the primary decision-maker.

Consequently, the Tribunal set aside the decision under review and substituted a decision that the applicant's Subclass 050 (Bridging (General)) visa, issued on 20 October 2016, was not cancelled.