Yazdani (Migration) - [2025] ARTA 419

YAZDANI (MIGRATION) [2025] ARTA 419 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Maziar Yazdani
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2445294
Tribunal:Kira Raif
Place:Sydney
Date:6 March 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 06 March 2025 at 1:01pm
CATCHWORDS
MIGRATION – Cancellation – Subclass 010 (Bridging A ) visa – criminal conviction – ground for cancellation exists – decision to cancel the BVA will not result in the applicant having to depart Australia – has an outstanding application for a substantive visa that is yet to be finally determined – applicant has taken steps towards rehabilitation – contribution to Australia through his academic research – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2
CASES
Wang v MIAC [2009] FMCA 865
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Iran born in August 1988. He was granted a Bridging A visa (BVA) in March 2022. In July 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling his visa under s. 116(1)(g). The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 6 March 2025 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g).
The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 419
Decision Date: 6 March 2025

CaseChat Overview and Summary

The matter before the Tribunal involved an application for judicial review of a decision to cancel the Subclass 010 (Bridging A) visa of an applicant, who had been convicted of criminal offences. The Tribunal was tasked with determining whether the decision to cancel the visa should be upheld or set aside.

The primary legal issues that the Tribunal addressed were whether the grounds for cancelling the visa under section 116(1)(g) and regulation 2.43(1)(oa) existed, and if so, whether the exercise of the discretion to cancel the visa should proceed in the circumstances of the case. The Tribunal had to consider the applicant's circumstances, including the purpose of his travel and stay in Australia, his compliance with visa conditions, and any other relevant matters as outlined in the Department's policy guidelines.

The Tribunal concluded that while there were grounds for cancelling the visa, the decision to cancel should not proceed. The Tribunal found that the applicant had been pursuing his PhD in Australia and had an outstanding application for a Student visa that had not been finally determined, as well as a pending application for a Bridging E visa. The Tribunal accepted that the applicant had taken steps towards rehabilitation and had made a significant contribution to Australia through his academic research. The Tribunal was also mindful that cancelling the Bridging A visa would not result in the applicant having to depart Australia immediately. Having regard to these factors, the Tribunal determined that the visa should not be cancelled. The decision under review was set aside, and a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa was substituted.

The Tribunal’s final order was to set aside the decision to cancel the applicant’s Subclass 010 (Bridging A) visa and substitute a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.Date(s) of hearing 6 March 2025 Representative for the Applicant: n/a

Ratio Decidendi

Legal Principle Established

Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s 116(1)(g) and reg 2.43(1)(oa). As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. Consideration of discretion Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia In his response to the NOICC the applicant states that he came to Australia to pursue his PhD and contribute to the society and he needs to stay in Australia for longer to finalise the examination. The applicant refers to his personal and professional background. He refers to his university study and a successful engineering career. He refers to his successful study in Australia and his ‘impeccable’ record, with no legal issues. In his submission to the Tribunal of 3 March 2025 the applicant provided a number of documents relating to his past study and employment, academic and professional achievements. The applicant states that if his visa is cancelled, it would render his past effort ‘meaningless’, and may jeopardise his opportunity to obtain the PhD. The applicant told the Tribunal that the BVA was granted on the basis of his application for the Student visa which was to enable him to complete his PhD which is a lengthy process. The applicant told the Tribunal that his Student visa application was refused and he has a case before the Tribunal in relation to that refusal. He has also applied for the Bridging E visa with permission to work and the application is still pending. The Tribunal accepts that the applicant may be fulfilling the purpose of his travel and stay in Australia as he is pursuing his study in Australia. As for the applicant’s needs to remain in Australia, the Tribunal is mindful that the cancellation of a BVA does not equate to the applicant having to depart Australia. As the applicant has an outstanding application for a Student visa that has not been finally determined, he is eligible to make an application for another Bridging visa, such as Bridging visa E and his evidence to the Tribunal is that he has done so. The Tribunal finds that the decision to cancel the BVA will not result in the applicant having to depart Australia. The extent of compliance with visa conditions