2317471 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Bridging E (Class WE) visa held by an applicant who arrived in Australia as an unauthorised maritime entrant in 2013. The applicant, a Faili Kurdish, Shia Muslim, was granted a Bridging Visa E in October 2013 and subsequently applied for a temporary protection visa. In approximately 2017, the applicant developed an addiction to prescription painkillers, leading to convictions for minor offences such as shoplifting and trespass. These convictions triggered a Notice of Intention to Consider Cancellation of his bridging visa.

The legal issues before the Tribunal were whether the applicant's Bridging E visa should be cancelled, given the grounds for cancellation under s.116(1)(g) of the Act and regulations 2.43(1)(p) or (q), and how to weigh the relevant considerations as mandated by Direction No. 63. The Tribunal was required to consider both primary and secondary factors, including the government's view on rigorous application of cancellation grounds, the best interests of any children, the impact on the family unit, the hardship to the visa holder, the circumstances of the offending, the consequences of cancellation, and any other relevant matters.

The Tribunal reasoned that while the grounds for cancellation were established, the discretion to cancel the visa required careful consideration of all circumstances. It accepted that the applicant's past trauma in Iran, feelings of hopelessness in Australia, and concerns for his family's welfare in Iran were substantial contributing factors to his drug addiction and subsequent offending. Despite the applicant's unsuccessful application for a Safe Haven Enterprise Visa, he intended to seek ministerial intervention and maintained a fear of harm if returned to Iran. The Tribunal also noted that the Magistrate had previously set aside a conviction and imposed a fully suspended sentence.

Ultimately, the Tribunal determined that, considering the applicant's circumstances as a whole, including his past trauma, addiction, and ongoing fear of returning to Iran, the cancellation of his Bridging E visa was not warranted. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 050 (Bridging (General)) visa.