Sharma (Migration)

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to cancel the applicant's Bridging C (Class WC) visa, subclass 030. The applicant had been convicted of serious offences, including high-range drink driving, contravention of an apprehended domestic violence order, and assault, for which he received fines, corrections orders, and was required to undertake rehabilitation programs. The applicant had made an application for a partner visa out of time, which the AAT had deemed to be out of jurisdiction, and was currently pursuing judicial review of that determination. The Bridging C visa in question had been granted in association with this judicial review application.

The AAT was required to determine whether there were grounds for cancelling the applicant's visa under s 116(1)(g) of the Migration Act 1958 (Cth) and r 2.43(1)(oa) of the Migration Regulations 1994 (Cth), given the applicant's criminal convictions. The AAT also had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to the circumstances of the case. The Tribunal was directed to consider factors such as the purpose of the visa holder's stay in Australia and whether they had a compelling need to remain.

The Tribunal found that the applicant had grounds for cancellation due to his criminal convictions. However, in exercising its discretion, the Tribunal had regard to the applicant's long period of residence in Australia since 2008, his partner and two children who reside in Australia, and the fact that the Bridging C visa was granted to enable him to remain lawfully in Australia while his judicial review application was pending. The Tribunal accepted that the applicant had a compelling need to remain in Australia for his children and that he was fulfilling the purpose of his stay. The Tribunal concluded that, considering all circumstances, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 030 (Bridging C) visa.