De Abrew Abeysundara (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Bridging B visa granted to the applicant, De Abrew Abeysundara. The delegate had cancelled the visa under s 116(1)(aa) of the Migration Act 1958 (Cth) on the ground that the visa was granted based on a fact or circumstance that did not exist. The applicant sought review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation existed, meaning whether the applicant's Bridging B visa had been granted based on a fact or circumstance that did not exist. A further issue arose when the applicant conceded the ground for cancellation but requested the Tribunal to refer her case to the Minister for consideration of the exercise of powers under s 351 of the Act, which allows the Minister to substitute a more favourable decision if it is in the public interest.

The Tribunal reasoned that the Bridging B visa was granted on the basis that the applicant had made a valid application for a substantive visa that had not been finally determined. However, the applicant had not lodged a review application for her own student visa refusal, meaning her application was considered finally determined at the expiration of the time limit for lodging a review. Consequently, the primary criteria for the grant of the Bridging B visa were not met. Regarding the request for ministerial intervention, the Tribunal held that it was not its role to advocate for the applicant or to participate in the process of referring matters to the Minister. Such requests should be made directly by the applicant.

The Tribunal affirmed the delegate's decision to cancel the applicant's Bridging B visa.