2304172 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 030 (Bridging C) visa under section 116 of the Migration Act 1958 (Cth). The applicant, a Malaysian national, had arrived in Australia in October 2017 on a visitor visa and subsequently applied for an onshore Protection visa, which remained undetermined. The applicant had been granted a Bridging C visa in conjunction with his protection visa application, and this visa was later cancelled. The cancellation was based on the applicant's conviction for two criminal offences in New South Wales in December 2022: driving while unlicensed and possessing a false document to influence the exercise of a public duty.

The primary legal issue before the Tribunal was whether the ground for cancellation, as prescribed by section 116(1)(g) and regulation 2.43(1)(oa) of the Migration Regulations 1994, was made out, and if so, whether the visa should be cancelled in the exercise of discretion. Regulation 2.43(1)(oa) specifies that a ground for cancellation exists if the holder of a temporary visa has been convicted of an offence against a law of the Commonwealth, a State, or a Territory. The Tribunal was required to determine if the applicant's convictions met this criterion and then consider all relevant circumstances in deciding whether to cancel the visa.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of two criminal offences. Although this ground did not mandate cancellation under section 116(3) of the Act, the Tribunal proceeded to consider the exercise of discretion. The Tribunal noted that the applicant's stated intention upon arrival in Australia, to holiday for five days, was inconsistent with his subsequent lodging of a Protection visa application and his prolonged stay. Furthermore, the Tribunal found that the applicant's reasons for wishing to remain in Australia, primarily economic hardship in his home country and a desire to support his family, indicated he was an economic migrant using the protection visa process to prolong his stay, rather than having a compelling need for protection. This finding weighed heavily in favour of cancellation. The applicant did not attend the hearing or provide submissions prior to the scheduled time.

The Tribunal affirmed the delegate's decision to cancel the applicant's Bridging C visa. The applicant continued to hold a Bridging E visa at the time of the decision.