Tian (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Bridging A (Class WA) visa of the applicant, Tian. The cancellation was based on the applicant's conviction for dangerous driving occasioning death and negligent driving occasioning death, offences committed on 16 August 2018, for which he was convicted on 18 September 2020 and sentenced to a two-year intensive corrections order.

The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 were made out, and if so, whether the applicant's visa should be cancelled, considering all relevant circumstances and discretionary guidelines. The applicant conceded that the grounds for cancellation existed, and as the cancellation was not mandatory under section 116(3), the Tribunal proceeded to consider its discretion.

In exercising its discretion, the Tribunal considered various factors including the purpose of the applicant's stay, his compliance with visa conditions, the hardship cancellation would cause, and the circumstances surrounding the offence. The Tribunal noted that the applicant stopped to render assistance, was cooperative with police, had no prior criminal history, and expressed remorse. Crucially, the Tribunal found that the circumstances giving rise to the ground for cancellation were not entirely beyond the applicant's control, but weighed heavily the applicant's lack of criminal antecedents, his remorse, and the fact that the offence was not intentional.

Ultimately, the Tribunal concluded that, considering all the 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 Bridging A visa.