Fattah (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Bridging E (Class WE) visa, Subclass 050, held by the applicant, Mr. Fattah. The Minister had cancelled Mr. Fattah's visa on the grounds that he had been charged with an offence against the law of New South Wales, as prescribed by regulation 2.43(1)(p)(ii) of the Migration Regulations 1994. Mr. Fattah contended that the cancellation was unfair and unreasonable, and that the charges were laid at a time when he was not a holder of a Bridging E visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 was established. It also had to consider whether to exercise its discretion to cancel the visa, having regard to Direction No. 63, which mandates the consideration of specified primary and secondary factors. These factors include the government's view on rigorous application of cancellation grounds, the best interests of any children affected, the impact on the family unit, hardship to the visa holder, the circumstances of the offence, and the consequences of cancellation.

The Tribunal found that the ground for cancellation was established, as Mr. Fattah had been charged with offences under New South Wales law, and the wording of the regulation did not impose a temporal limitation on when the charges must have arisen. In exercising its discretion, the Tribunal noted that while it placed some weight on Mr. Fattah's account of his interaction with departmental officers, it could not assess the reasonableness of his detention as it lacked sufficient information. The Tribunal also rejected the argument that the charges must have arisen during the period Mr. Fattah held a Bridging E visa, as this was not a requirement of the legislation. The Tribunal affirmed the decision to cancel Mr. Fattah's visa.