Le (Migration)

This matter concerned an application by Le (the applicant) to review the cancellation of his Bridging E visa. The applicant had been convicted of criminal offences and had subsequently breached his visa conditions by failing to report to the Department of Immigration and by going "underground" to avoid further legal consequences. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issue before the Tribunal was whether the applicant's criminal convictions and subsequent breaches of his visa conditions constituted a ground for cancellation under section 116(1)(g) of the Act, read in conjunction with regulation 2.43(1)(p) of the Migration Regulations 1994. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the requirements of Direction No. 63. This Direction mandates the consideration of specific primary and secondary factors, including the government's policy of rigorous application of cancellation grounds, the best interests of any children affected, the impact on the family unit, the hardship to the visa holder, the circumstances of the non-compliance, and the consequences of cancellation.

The Tribunal found that the ground for cancellation under section 116(1)(g) was established, as the applicant admitted to his convictions and the Tribunal was satisfied that regulation 2.43(1)(p) applied. In considering the exercise of discretion, the Tribunal noted the applicant's serious criminal history, including convictions for dangerous driving and other offences, and his deliberate evasion of authorities and reporting obligations. While acknowledging the applicant's submissions regarding hardship and family impact, the Tribunal gave greater weight to the primary consideration of the government's view that prescribed grounds for cancellation should be applied rigorously. The Tribunal concluded that the decision to cancel the applicant's visa should be affirmed.