Carneiro de Faria (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging A (Class WA) visa, Subclass 010, held by the applicant, Mr. Carneiro de Faria. This visa had been granted in association with an ongoing application for a partner visa. The cancellation was based on concerns that the applicant's presence in Australia posed a risk to the Australian community due to pending criminal charges.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) were made out, specifically whether the applicant's presence in Australia was or might be a risk to the health, safety, or good order of the Australian community. 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 ground for cancellation was made out, as the applicant faced serious criminal charges, including drug offences, which posed a risk to the community. However, the Tribunal ultimately decided not to uphold the cancellation decision. This conclusion was not based on the applicant's submissions but on the subsequent actions of the Department of Home Affairs. Following the cancellation, the applicant was granted a Bridging E visa, which regularised his status and prevented him from becoming an unlawful non-citizen. The Tribunal found it incongruous that the Department would cancel a visa due to concerns about criminal conduct, only to then grant another visa and be satisfied that the applicant would abide by conditions preventing further criminal conduct. The Tribunal considered it unreasonable to uphold the cancellation decision given these subsequent departmental actions.

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