2429604 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 030 (Bridging C) visa. The applicant, who was born in Vanuatu, had been granted the bridging visa in conjunction with an application for a protection visa, made after his previous working visa ceased. The cancellation decision was based on the applicant's criminal convictions, which resulted in imprisonment, community correction orders, and a fine. The applicant had agreed that grounds for cancellation existed and had provided reasons why his visa should not be cancelled.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were made out, and if so, whether the discretion to cancel the visa should be exercised. Regulation 2.43(1)(oa) of the Migration Regulations 1994 prescribed that a holder of a temporary visa, other than specific bridging visas, could have their visa cancelled if convicted of an offence against Commonwealth, State, or Territory law. The Tribunal was required to consider all relevant circumstances in exercising its discretion, including matters of government policy and the applicant's personal circumstances.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of several offences against the laws of New South Wales. As this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. The applicant presented several mitigating factors, including his country's economic poverty, his family's financial hardship, his desire to work and support them, and his remorse for his actions, attributing them to alcohol consumption. He expressed a commitment to rehabilitation and compliance with visa conditions. However, the Tribunal, after considering all the circumstances, including the applicant's submissions and the Department's Procedures Advice Manual, concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 030 (Bridging C) visa.