2218941 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging E (Class WE) visa, Subclass 050, held by the applicant. The cancellation was based on the applicant having been charged with serious criminal offences. The applicant had been in immigration detention for over five years.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out. Specifically, the Tribunal considered regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, which prescribes that a visa may be cancelled if the holder has been charged with an offence against a law of the Commonwealth, a State, a Territory, or another country.

The Tribunal found that while the applicant had indeed been charged with several offences at the time the cancellation decision was made, those charges had since been dismissed or the applicant had been acquitted. Consequently, the Tribunal concluded that the prescribed ground for cancellation under section 116(1)(g) no longer existed. As the ground for cancellation was not satisfied, the power to cancel the visa did not arise. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.