2305515 (Migration)

This matter concerned the review of two decisions by a delegate of the Minister to cancel the applicant's Subclass 050 (Bridging (General)) visa. The applicant, a citizen of Fiji, had been in Australia since 2020 and held various bridging visas pending the outcome of a protection visa application. The first cancellation decision, made on 11 April 2023, was based on the applicant having been charged with offences in July 2021. The second cancellation decision, made on 14 April 2023, was based on the applicant's conviction in November 2022 for common assault and unlawful and indecent assault. The Administrative Appeals Tribunal was required to determine the lawfulness of these cancellation decisions.

The primary legal issues before the Tribunal were whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were made out in relation to both the charges and the conviction, and if so, whether the visa should be cancelled having regard to all relevant circumstances. The Tribunal also considered the procedural validity of the cancellation decisions, including whether the notification requirements under section 127(2)(b) had been met and the implications of any potential jurisdictional error in the delegate's decision-making process. The Tribunal's jurisdiction to review such decisions, even if the primary decision was invalid, was also a key consideration.

The Tribunal reasoned that while the grounds for cancellation under section 116(1)(g) were established by the applicant's charges and subsequent conviction, the review was conducted 'de novo'. The Tribunal noted that procedural defects in the original cancellation decisions, such as inadequate notification or jurisdictional error, did not prevent the Tribunal from reviewing the matter. The Tribunal ultimately found that the second cancellation decision, made after the applicant had sought review of the first, was the operative decision under review. The Tribunal considered the evidence presented, including official records produced under summons, and determined that the visa should not be cancelled. The Tribunal set aside the second cancellation decision.