2218410 (Migration)

This case concerned an appeal by an applicant, born in Iran, against the cancellation of his Bridging E visa. The applicant had arrived in Australia by boat in 2013 and was subsequently granted a protection visa application invitation. He had faced criminal charges in 2016, which were later withdrawn, and had formed a de facto relationship with an Australian citizen, with whom he had a child. The applicant had also previously struggled with drug addiction but had since achieved sobriety and was receiving psychological treatment. The dispute before the court was whether the cancellation of the applicant's Bridging E visa was valid and, if so, whether it should be upheld.

The legal issues before the court were whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled, having regard to the prescribed primary and secondary considerations under Direction No. 63. Specifically, the court had to determine if the applicant had been charged with an offence against a law of the Commonwealth, a State, a Territory, or another country, as stipulated in regulation 2.43(1)(p)(ii) of the Migration Regulations 1994. The court also considered the validity of the original cancellation decision and whether it had been revoked.

The court reasoned that while the ground for cancellation under section 116(1)(g) was established due to the applicant having been charged with offences, the decision to cancel the visa was not mandatory. The court then applied Direction No. 63, weighing the primary consideration of the best interests of the child against other factors. It found that cancellation would significantly impact the applicant's young son, limiting his involvement in the child's life. The court also considered the hardship to the applicant, noting his progress in overcoming drug addiction and his improved mental health, and the circumstances surrounding the withdrawn charges. Ultimately, the court concluded that the cancellation decision should be set aside, finding that the negative impact on the child and the applicant's rehabilitation outweighed the grounds for cancellation.

The court ordered that the decision to cancel the applicant's Bridging E visa be set aside.