Bashir (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Bridging A (Class WA) visa was subject to cancellation. The dispute arose following the applicant's criminal conviction for assault occasioning actual bodily harm, for which he received a community correction order. The Tribunal was tasked with determining whether the grounds for visa cancellation existed and, if so, whether the visa should be cancelled in the exercise of discretion.

The primary legal issue was whether the applicant's conviction for assault occasioning actual bodily harm constituted a prescribed ground for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed been convicted of an offence against a law of New South Wales, thereby satisfying the ground for cancellation under section 116(1)(g). However, this ground did not mandate cancellation. In considering the exercise of discretion, the Tribunal had regard to the applicant's explanation for his academic difficulties, including family illnesses, homesickness, and the death of his grandmother, which led to his return to Pakistan on multiple occasions. The Tribunal also considered the circumstances of the assault, noting the applicant's guilty plea and remorse, and that the act was committed to protect his girlfriend and himself from her abusive ex-husband. The Tribunal concluded that, in light of these mitigating factors and the applicant's explanation for his study history, the Bridging A visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 010 (Bridging A) visa and substituted a decision not to cancel the visa.