Kane (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision to cancel the Bridging E (Class WE) visa, subclass 050, held by the applicant, a New Zealand citizen. The applicant had an extensive criminal history dating back to 2007, including driving offences, drug possession, public nuisance, stealing, and most recently, charges of grievous bodily harm, drug offences, and failing to appear in accordance with bail conditions in 2017. The delegate's decision to cancel the visa was based on these grounds.

The AAT was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The Tribunal found that the serious charges laid in 2017, following a long history of offending, satisfied the ground for cancellation under section 116(1)(g) and regulation 2.43(1)(p)(ii) of the Migration Regulations 1994. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider its discretion.

In exercising its discretion, the AAT applied Direction No. 63, which requires consideration of specified primary and secondary factors. The Tribunal weighed the government's view that prescribed grounds for cancellation should be applied rigorously against the best interests of the applicant's Australian-born son. While acknowledging the seriousness of the applicant's criminal history and the charges, the Tribunal also considered the applicant's remorse, his family support in Australia, his financial support for his son, and his desire to continue working to provide for his child. The Tribunal noted that the applicant denied the most recent charges and was seeking mediation regarding visitation rights for his son.

Ultimately, the Tribunal concluded that the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's Bridging E visa.