2305259 (Migration)

This matter concerned the review of two decisions made by a delegate of the Minister to cancel the applicant's Bridging E (Class WE) visa (subclass 050). The applicant, a citizen of Fiji, had been in Australia since 2020, holding various visitor and bridging visas while awaiting the outcome of a protection visa application. The cancellations were based on section 116(1)(g) of the Migration Act 1958 (Cth), which permits visa cancellation if the Minister is satisfied that the holder has been charged with or convicted of certain offences. The first cancellation decision was made on 11 April 2023, following charges laid in July 2021 for common and indecent assault. A second cancellation decision was made on 14 April 2023, after the applicant sought review of the first decision, this time based on convictions in November 2022 for common assault and unlawful and indecent assault. The Administrative Appeals Tribunal (AAT) was required to determine whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled.

The Tribunal was required to consider the validity and effect of two separate cancellation decisions made by the delegate concerning the applicant's Bridging E visa. Specifically, the Tribunal had to determine if the grounds for cancellation under section 116(1)(g) of the Act were established by the charges and convictions. Furthermore, if the grounds were established, the Tribunal needed to consider all relevant circumstances in deciding whether to cancel the visa. The Tribunal also had to address potential issues with the notification of the first cancellation decision and the delegate's consideration of legal consequences in the second decision, noting that it reviews such decisions de novo.

The Tribunal reasoned that while the first cancellation decision may have had notification issues, this did not affect the validity of the cancellation itself, and the applicant had applied for review within the statutory timeframes. Regarding the second decision, the Tribunal noted that even if the delegate had made a jurisdictional error, the decision remained reviewable by the Tribunal. The Tribunal confirmed that cancellation decisions under section 116 are reviewable if the visa holder is in Australia at the time of the decision and the review application, and that review is possible even if the primary decision was invalid. The Tribunal ultimately found that the official records produced under summons were sufficient for its determination and preferred these records over other material. The Tribunal affirmed the decision to cancel the applicant's Bridging E visa.