Bui (Migration)

This matter concerned an appeal by a 24-year-old Hong Kong national against the cancellation of her Bridging A (Class WA) visa. The applicant had arrived in Australia in January 2016 on a student visa, which ceased in March 2018 after her studies were cancelled due to unsatisfactory attendance. She subsequently obtained a Bridging A visa in association with her mother's partner visa application. The Department of Home Affairs issued a notice of intention to cancel her visa on the basis of a criminal conviction. The applicant provided submissions and supporting documents, including a witness statement to NSW Police that assisted in a prosecution, a sentencing report, and letters of support from her mother and friends. The delegate cancelled the visa on 13 October 2021, and the applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's Bridging A visa was justified, considering the grounds for cancellation and all relevant circumstances. Specifically, the Tribunal had to determine if the applicant had been convicted of an offence, as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994, which would engage section 116(1)(g) of the Migration Act 1958. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including government policy and the applicant's personal circumstances.

The Tribunal found that the applicant's conviction did indeed fall within the prescribed ground for cancellation under section 116(1)(g). While this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of discretion. It acknowledged the applicant's long period of residence in Australia since the age of 18, her desire to remain for personal and family reasons, and her inclusion as a dependant on her mother's partner visa application. However, the Tribunal also noted that her initial purpose of study had ceased, and her student visa had expired. Despite the applicant's submissions regarding her integration into Australian life and her wish to study and settle, the Tribunal concluded that, when considering all the circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 010 (Bridging A) visa.