QDST and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application to review the cancellation of the applicant's bridging visa. The applicant, born in Sri Lanka in 1993 and of Tamil ethnicity, arrived in Australia in April 2013 without a visa and applied for a protection visa. This application was refused by a delegate of the Minister in November 2016, and a subsequent review by the Immigration Assessment Authority in July 2017 was also unsuccessful. The applicant's judicial review of the Authority's decision in the Federal Circuit and Family Court of Australia was dismissed in November 2021, and an appeal to the Federal Court was dismissed in August 2022. The applicant had been granted bridging visas throughout these processes, most recently on 18 August 2017, which permitted him to reside in the community pending the outcome of his judicial review. The applicant had also committed a number of offences in Australia, including dangerous driving in March 2017.

The primary legal issue before the court was whether to affirm or set aside the decision to cancel the applicant's bridging visa. The court was required to weigh the "primary considerations" against the "other considerations" in determining the appropriate course of action. The court noted that setting aside the cancellation would not grant the applicant a permanent right to remain in Australia, as that decision lay with other authorities.

In its reasoning, the court acknowledged that while primary considerations generally ought to prevail, "other considerations" could, in an individual case, outweigh them. The court gave substantial weight to the fact that affirming the cancellation would result in the applicant continuing in immigration detention for a prolonged and uncertain period, particularly given that his appeal to the full Federal Court had only just been initiated. The court referenced the significant premium the law places on individual liberty, as highlighted in *WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2021] FCAFC 55. The court also took into account the applicant's detention since August or September 2021, the 18-month delay in finalising the decision on his representations, and the fact that the applicant's appeal to the full Federal Court was not demonstrably unmeritorious.

The court ordered that the decision under review be set aside and substituted with a decision that the cancellation of the applicant's visa be revoked.