2314333 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Bridging A (Class WA) visa, Subclass 010, held by the applicant. The cancellation was based on the applicant's conviction for an offence under New South Wales law. The applicant had been issued a Notice of Intention to Consider Cancellation following his conviction for carrying out a sexual act with another person without consent, for which he received an 18-month Conditional Release Order.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation under section 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(oa) of the Migration Regulations 1994 was established. The Tribunal was required to consider all relevant circumstances, including those raised by the applicant, in determining whether to uphold the cancellation decision.

The Tribunal found that the ground for cancellation was made out, as the applicant had been convicted of a criminal offence. However, this ground did not mandate cancellation under section 116(3). In exercising its discretion, the Tribunal considered the applicant's purpose for remaining in Australia, which was to have his Protection visa application reviewed by the Tribunal. It also noted the absence of visa conditions and, crucially, the significant financial, psychological, and emotional hardship that cancellation would cause to the applicant and his wife, who were experiencing health issues and living on limited savings. The Tribunal also took into account favourable character references and the potential for re-employment.

Ultimately, the Tribunal concluded that, when considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substitute decision was made not to cancel the applicant's Bridging A visa.