2318122 (Migration)

This matter concerned an application by the Applicant to review a decision to cancel her Subclass 050 (Bridging (General)) visa. The Applicant, her husband, and their son arrived in Australia in December 2012 without valid visas and subsequently applied for Subclass 866 Protection (Class XA) visas. These applications were refused on 3 February 2015, initiating a complex procedural history involving merits review by the Tribunal and appeals to the Federal Circuit Court. Crucially, consent orders made by the Federal Circuit Court in September 2016 declared that the protection visa applications were to be treated as applications for Temporary Protection (Class XD) visas and remitted the matter back to the Tribunal for reconsideration.

The primary legal issue before the Tribunal was whether the Minister had the power to cancel the Applicant's Bridging E visa under section 116 of the Migration Act 1958 (Cth). Specifically, the Tribunal was required to determine if the grounds for cancellation specified in section 116(1)(aa) were made out, which would then necessitate consideration of whether the visa should be cancelled having regard to all relevant circumstances. The Applicant's Bridging E visa was in effect while her substantive protection visa application was progressing through the review process.

The Tribunal reasoned that the power to cancel a visa under section 116 of the Act arises only if the Minister is satisfied that a specified ground for cancellation is made out. In this instance, the Tribunal found that it was not satisfied that the ground for cancellation under section 116(1)(aa) existed. Consequently, the power to cancel the Applicant's visa did not arise. The Tribunal concluded that the substantive application for review was still progressing, and therefore, the decision to cancel the Applicant's visa should be set aside.

The Tribunal set aside the decision under review and substituted it with a decision not to cancel the Applicant’s Subclass 050 (Bridging (General)) visa.