2218838 (Migration)

This matter concerned a review of the cancellation of the applicant's Bridging E (Class WE) visa, Subclass 050. The applicant, an Iraqi national, had arrived in Australia as an irregular maritime arrival in March 2013. He had previously applied for a protection visa, which was refused, and his subsequent appeal to the Federal Court was dismissed. The applicant had been issued a series of bridging visas since his arrival and had been at large without a visa on several occasions, leading to his return to detention. The review was heard by Senior Member David James.

The primary legal issues before the Tribunal were whether the grounds for cancellation of the applicant's visa were made out under section 116 of the Migration Act 1958 (Cth) and Regulation 2.43(1)(p)(i), and if so, whether the visa should be cancelled having regard to all relevant circumstances, including Ministerial Direction No. 63. The Tribunal was required to consider the applicant's criminal convictions, his periods of unlawful residence, and the best interests of an Australian child.

The Tribunal found that the grounds for cancellation were established, noting the applicant's convictions for offences involving the removal of personal property, which arose from his illicit drug use. In considering the relevant circumstances, the Tribunal acknowledged that the applicant was the father of an Australian citizen child, aged [age] years, and that the child and his mother visited the applicant daily. This consideration weighed in favour of the applicant. However, the Tribunal also found that the applicant had not financially contributed to his children in Australia or Iraq, and that his continued detention was likely to exacerbate his depression, despite treatment being available. The Tribunal also noted that the applicant had exhausted his appeal rights for a protection visa and had no active applications for a substantive visa, meaning cancellation would likely result in indefinite detention.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa. The Tribunal concluded that, after careful consideration of all relevant circumstances, the visa should be cancelled.