Martin (Migration)

The Administrative Appeals Tribunal reviewed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the Bridging A (Class WA) visa held by the applicant, an Irish national. The applicant had been convicted of common assault and assault occasioning actual bodily harm, for which he received a Conditional Release Order and a Community Correction Order. Following these convictions, the applicant applied for a Temporary Skilled Shortage visa, and was granted a bridging visa associated with that application. The delegate subsequently issued a Notice of Intention to Consider Cancellation, and after considering the applicant's response, cancelled the bridging visa. The applicant sought review of this decision.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the visa should be cancelled, having regard to all relevant circumstances. The Tribunal also considered the applicant's submissions regarding compassionate or compelling circumstances, including the impact of a skill shortage on his employer, his desire to remain in Australia to establish his own business and be with his family, and the potential consequences of cancellation such as becoming an unlawful non-citizen and being subject to bars on future visa applications.

The Tribunal found that the ground for cancellation under s 116(1)(g) was established due to the applicant's criminal convictions. While acknowledging the applicant's desire to remain in Australia, his value as an employee in a profession experiencing a skill shortage, and his stated wish to be with family, the Tribunal noted that the applicant had withdrawn his application for a Temporary Skilled Shortage visa after his employer's sponsorship application was refused. Crucially, the Tribunal observed that the applicant's Bridging A visa had already ceased by operation of law 35 days after the withdrawal of his substantive visa application. Therefore, the mandatory legal consequences of visa cancellation, such as becoming an unlawful non-citizen and facing limitations on future visa applications, were largely already applicable to the applicant irrespective of the Tribunal's decision.

The Tribunal affirmed the delegate's decision to cancel the applicant's Bridging A visa. The Tribunal concluded that the cancellation was appropriate given the circumstances, particularly as the applicant was already facing the significant legal consequences of his visa having ceased by operation of law following the withdrawal of his substantive visa application. The Tribunal found no legal basis to reinstate the applicant's Bridging A visa or to permit him to lodge a further onshore Temporary Skilled Shortage visa application.