Sharma (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the applicant's Bridging B visa. The cancellation was based on the applicant's alleged risk to his de facto partner, stemming from charges of assault and other offenses. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issues before the Tribunal were whether the applicant posed a risk to his de facto partner, such that the cancellation ground under s 116(1)(e)(ii) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. In assessing the risk, the Tribunal considered the Director of Public Prosecutions Guidelines regarding prosecution, focusing on the public interest and the reasonable prospect of conviction. The Tribunal also had to consider the applicant's subsequent migration history, specifically the grant of a Bridging E visa after the cancellation of his Bridging B visa.

The Tribunal reasoned that while there was admissible evidence capable of establishing the offenses and reasonable prospects of conviction, the subsequent grant of a Bridging E visa by another delegate raised significant questions. This subsequent grant, which included a condition prohibiting criminal conduct, appeared to contradict the earlier assessment that the applicant posed a risk warranting cancellation. The Tribunal found it curious that the applicant remained at liberty in the community on a Bridging E visa after the cancellation of his Bridging B visa due to concerns about his risk to his de facto partner. Ultimately, the Tribunal was persuaded that the discretion to cancel the visa should not be exercised, particularly in light of the applicant's subsequent migration status.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 020 (Bridging B) visa.