Jan (Migration)

The Administrative Appeals Tribunal affirmed the decision to cancel Mr Jan's Bridging E (Class WE) visa. The dispute concerned whether the Minister's discretion to cancel Mr Jan's visa under section 116(1)(g) of the Migration Act 1958 (Cth) had been exercised correctly.

The Tribunal was required to determine if the grounds for cancellation under regulation 2.43(1)(p)(ii) of the Migration Regulations 1994 were met, and if so, whether the visa should be cancelled, having regard to all relevant circumstances and in accordance with Direction No. 63. The prescribed grounds for cancellation were met due to Mr Jan's conviction for supplying dangerous drugs and other pending charges, as well as a previous conviction for importing and using prohibited substances.

In reaching its decision, the Tribunal applied Direction No. 63, which mandates consideration of specified primary and secondary factors. The primary considerations were the government's view that prescribed grounds for cancellation should be applied rigorously and the best interests of any children under 18. The Tribunal gave considerable weight to the seriousness of the charges and convictions as a primary consideration. As there were no children affected, the second primary consideration was not given weight. Secondary considerations included the impact on the family unit, hardship to the visa holder, the circumstances of the ground for cancellation, and possible consequences. The Tribunal found that while cancellation would result in significant hardship, including potential detention and separation from his fiancée, this was outweighed by the primary consideration of the criminal convictions.

The Tribunal concluded that the visa should be cancelled and therefore affirmed the decision under review.