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 must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
A visa may be cancelled under s 116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). Regulation 2.43(1)(oa) provides the following:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Bridging visa in March 2022. In May 2024 the applicant had been convicted of the following offences:
·Armed with intent to commit an indictable offence
·Stalk / intimidate intend fear physical harm (domestic)
·Common assault
·Assault occasioning actual bodily harm
The applicant was sentenced to an intensive correction order / community corrections order and ordered to participate in counselling / treatment.
In his response to the NOICC the applicant claims that some of the reporting of the incidents has been untrue and amended by the police and the applicant states that the police was concerned about the credibility of the victim. Nevertheless, the applicant acknowledges that he has been convicted of the offences and concedes that grounds for cancellation exist. In oral evidence the applicant also agreed that there are grounds for cancelling the visa.
The applicant claimed in his communications with the delegate that the victim had fabricated evidence in order to exert financial pressure on him but he states that he pleaded guilty to some charges in order to alleviate the pressure on his family and obtain a quick resolution. Whatever the circumstances that had led to the convictions, the Tribunal notes that the applicant had been convicted of offences and there is no evidence that these had been overturned on appeal. It is not for this Tribunal to go behind the convictions.
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
There is no evidence of any non-compliance with visa conditions.
The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
In his response to the NOICC the applicant refers to his past study in Australia and overseas and states that he has been able to secure a postdoctoral appointment. The applicant refers to his contribution to the community and the high regard in which he is held by colleagues. In his response to the NOICC the applicant refers to Direction 55 and s. 501 of the Act (which are not applicable in the present case) and states that his contribution to the community and academic achievements are ‘essential factors’. The applicant states that the direction mandates that the extent of his contribution to the community and the likelihood of future harm must be considered, but, as noted above, Direction 110 and s. 501 are not relevant in the present case.
The applicant claims that cancelling the visa would cause him significant hardship and pose a ‘life-threatening’ situation for him and his family due to the severe pressure and threat from his ex-wife’s family, which he had reported. The applicant states that he received explicit threats and has a well-founded fear of persecution if removed from Australia. The applicant refers to the Universal Declaration of Human rights (the relevance of which is not entirely clear). The applicant presented a statement purportedly from his lawyer which refers to legal proceedings being commenced against the applicant by his wife in Iran. The applicant claims that he suffers from ‘severe health issues’ and is under a doctor’s supervision and if removed to Iran, he faces a risk of imprisonment and inadequate health care due the authority of his ex-wife’s family and this would endanger his well-being and safety. The Tribunal does not accept these claims because, as noted above, the cancellation of the BVA will not require the applicant to leave Australia in circumstances where he has an outstanding application for a substantive visa that is yet to be finally determined.
The applicant refers to several provisions of the Migration Act, domestic and international legislation which seem to have little, if any, application to the present case.
In oral evidence the applicant stated that the incident occurred many years ago and his actions were out of character for him. The applicant spoke about his contribution to Australia. The applicant refers to his safety in Iran as well as his health issues, stating he cannot leave Australia.
Again, the Tribunal considers the applicant’s claims to be misguided because these are based on an assumption that if the BVA is cancelled, the applicant would be required to leave Australia. That is not the case. If the applicant has an outstanding application for a substantive visa, that application will be considered independently. The applicant is eligible to seek another bridging visa during its processing and has done so. The Tribunal is mindful that if the applicant is granted the Student visa, the BVA would cease to be in effect. If his application for the Student visa is finally determined and is not successful, the applicant would not be entitled to hold a BVA. That is, the applicant’s ability to remain in Australia and to seek another visa (as he indicated he intends to do) are dependent on the applicant being granted the Student visa, not the BVA. Nevertheless, the Tribunal accepts that the application of PIC 4013 (if the applicant’s BVA remains cancelled) might affect his eligibility for the Student visa.
The applicant told the Tribunal that if he retains the BVA, he will be able to work while he cannot work now and is not able to support himself financially. The applicant states that he has been reliant on friends for financial support. The Tribunal accepts that the applicant has not been granted permission to work (his evidence is that he had made an application for a BVE with permission to work but that has not yet been determined.) The Tribunal accepts that unless the applicant is granted the BVE with permission to work, or his BVA is reinstated, he will not be able to work. However, the Tribunal does not accept the applicant’s claim that he intends to seek judicial review on the Student visa decision, if unsuccessful, and that may be a lengthy process which will result in long-term inability to work and financial hardship. This is because cl. 010.511(1)(b)(iii) provides that the BVA will cease to be in effect 35 days after the ART makes its decision. If the applicant intends to seek judicial review in relation to the Student visa refusal, he will need to make an application for another Bridging A visa and the duration of that visa would be governed by cl. 010.513. That is, if the BVA is reinstated, the applicant is likely to hold that visa for a short time only and will be required to get another longer-term visa to remain in Australia and to work.
The applicant states that if his Student visa is granted, that would only be for a short period of time (he told the Tribunal he had already attended the Tribunal hearing in January 2025 in relation to the Student visa and has to provide additional documents in March). The applicant states that if he relies on the Student visa, he would only have a short time and he will not be able to apply for further visas in Australia. While that may be the case, the Tribunal is mindful that the BVA will cease if the applicant is granted a substantive visa and the BVA will not allow the applicant any additional time to make other visa applications in the future.
The applicant states that if his bridging visa is cancelled, he will not be able to make an application for a further visa but if the cancellation is set aside, he intends to apply for a subclass 190 visa or another visa. The applicant states that he was informed that if his Bridging visa is cancelled, he will not be granted the Student visa and will not be able to remain in Australia. The Tribunal accepts that PIC 4013 may apply to the applicant, and affect his eligibility for the Student visa, if the BVA remains cancelled. As for the future visa applications onshore, the Tribunal notes that the applicant is subject to the limitations imposed by s. 48 due to the refusal of his Student visa and he will need to hold a substantive visa before any application can be made onshore. That is, it is not the cancellation of the BVA that would preclude the applicant from making future applications onshore.
(The Tribunal is also mindful that the applicant is seeking the Student visa, a requirement of which is that he is a genuine applicant for entry and stay as a student – cl. 500.212. The applicant’s evidence is that he cannot (and has no intention to) return to Iran does not seem to be consistent with the applicant being a genuine applicant for entry and stay as a student but it is not for this Tribunal to determine whether the applicant meets the requirements for the grant of the Student visa.)
The applicant states that he needs income to perform the recommended operation as he has been reliant on temporary relief so far. The applicant states that he needs to be able to access Medicare. The medical evidence indicates that the applicant was recommended the operation some months ago and the applicant told the Tribunal he did not pursue the operation due to its high cost. The Tribunal accepts that there are likely to be high costs associated with a medical procedure but the Tribunal does not consider that reinstating what is likely to be a short-term BVA with permission to work is necessarily going to enable the applicant to save the funds for the operation.
The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence
The ground for cancellation arises because the applicant had been convicted of offences. The Tribunal does not consider the commission of an offence to have been a circumstance beyond the applicant’s control. There is nothing to suggest the applicant has been the victim of family violence.
There is on the Departmental file a copy of the Police Facts Sheet which outlines the circumstances of the offending. In his response to the NOICC the applicant claimed that these were inaccurate, he questioned the credibility of the victim and referred to her changing story. Nevertheless, the applicant also states that he had pleaded guilty to some of the offending in order to minimise the pressure on his family. The applicant states that he has been assessed to be at a low risk of reoffending. The applicant concedes that he has been convicted of offences but refers to his contribution to the community.
The Tribunal notes that the offences that resulted in the conviction related to the family violence offending. In the Tribunal’s view, this is serious offending that can cause considerable harm to the victim. It is viewed seriously by the community.
The past and present behaviour of the visa holder towards the Department
Nothing adverse is known about the applicant’s past and present behaviour towards the Department.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
There are no persons whose visa would be subsequent to consequential cancellation.
Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal
The applicant is not the subject of a protection finding. While the applicant claims he cannot return to his home country as he will not have access to healthcare and because of the connections of his ex-wife, the applicant has not been assessed as being owed protection obligations and has not submitted such claims for an appropriate assessment.
If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, if the applicant has another visa application or process outstanding, he will be eligible to seek another bridging visa to enable him to remain in Australia lawfully to await the outcome of such an applicant or process. The Tribunal does not consider that the cancellation of the BVA will lead to the applicant being removed from Australia or of having to depart Australia.
The cancellation of the visa will also result in the application of s 48, limiting the applicant’s options of applying for another visa onshore, and the applicant would be subject to an exclusion period in relation to future visa applications offshore. The Tribunal is mindful that the applicant is subject to the operation of s. 48 due to the refusal of his Student visa irrespective of this review.

The applicant claims that if his visa is cancelled, he will not be able to support himself in Australia while he is awaiting the outcome on the Student visa and related processes such as judicial review. This claim has been addressed above and the Tribunal accepts that the applicant does not have permission to work unless his BVA is reinstated or unless he is granted another visa, although the Tribunal also notes that the applicant will need to apply for a further BVA if he is unsuccessful in merits review in relation to the Student visa and his BVA will cease if he is granted the Student visa.
The applicant also claims that the cancellation of the Bridging visa will affect his future visa applications. As noted above the applicant may be subject to PIC 4013 in relation to the existing Student visa application and s. 48 will apply to him.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations
The applicant claims that his wife has significant influence in Iran and that he is fearful for his well-being in Iran, and also that he will not get access to adequate medical treatment. The applicant presented what purports to be a letter from a lawyer in Iran to support these claims.
As the cancellation of the BVA will not result in the applicant having to depart Australia (with the applicant having made an application for a Student visa that is yet to be finally determined), the Tribunal does not consider that Australia’s international obligations would be breached by the cancellation of the BVA.
Any other relevant matters.
In his submission to the Tribunal the applicant provided a medical certificate from Dr Forghani and the Tribunal accepts that the applicant had a condition referred to in that certificate which requires medical intervention.
The applicant provided evidence of his employment at UNSW from May 2022, as well as evidence relating to his past scholarship and other academic engagements. The Tribunal accepts that evidence. The Tribunal accepts that the applicant has made meaningful contribution through his employment and academic achievements. The Tribunal also accepts that the applicant has an ongoing contract with UNSW but is unable to work since the cancellation of his visa.
The applicant provided to the Tribunal evidence that, by November 2023, he had completed four sessions of online Anger Management Course. The applicant also provided a psychological report prepared by Carlos Camacho in April 2024, which appears to have been prepared for the purpose of the criminal proceedings. The report states that the applicant has expressed deep regret and remorse concerning the incident and he has no prior instances of violence or convictions, however it is also stated that the applicant claimed most of the allegations against him were unfounded and that he pleaded guilty to expedite the resolution of the matter. Mr Camacho refers to the applicant presenting with symptoms of anxiety and stress (severe) and depression (mild). The report states that the applicant requires ongoing cognitive behavioural treatment.
There is a further report by Seyed Hosseinipur, dated 1 March 2025 confirming the applicant has been receiving regular counselling throughout 2023 and expressing the view that the applicant’s ongoing presence in Australia will be beneficial. The Tribunal has also had regard to the psychological therapy report prepared by Fareshteh Rahmani. The Tribunal accepts that the applicant has taken steps towards rehabilitation and has engaged in a number of programs and counselling sessions.
In his own statement to the Tribunal the applicant states that over four years passed since the 2020 incident and he had met legal requirements, undertaken comprehensive rehabilitation and has advanced Australia’s interests. The applicant states that the 2020 episode does not reflect his commitment to ethical and professional standards. The applicant refers to his contribution to community and public safety and his past achievements, including in academic fields. The applicant outlines his visa history and his past study in Australia. The applicant refers to his health concerns and to the hardship he would experience if ‘deported’.
The applicant presented evidence of having been a blood donor. The applicant provided to the Tribunal copies of untranslated email messages. He also provided a number of character references. The Tribunal accepts that the applicant has made a contribution to the community.
The applicant states that he requires treatment and he has not had the funds to pay for the operation but if his visa is reinstated, he will save the funds for the operation. This claim has been addressed above. The Tribunal accepts, having regard to the medical evidence, that the applicant requires treatment and the Tribunal also accepts that the applicant will not be able to work if his visa remains cancelled and if he is not granted another visa (noting that he has already applied for a BVE with permission to work). The Tribunal is not satisfied, however, that if granted the BVA, the applicant will be able to financially support the treatment because the BVA is likely to be in existence for a short period, until the applicant is either granted or refused the Student visa.
The Tribunal has found that there are grounds for cancelling the applicant’s visa as he had been convicted of a number of offences. The Tribunal considers much of the applicant’s evidence misguided because it is based on the presumption that the cancellation of the BVA will result in the applicant being ‘deported’ from (or having to leave) Australia. As noted above, that is not the case as the applicant has an outstanding application for a Student visa and it is the grant of a substantive visa, rather than the BVA, that will enable the applicant to remain in Australia. The Tribunal also notes that s. 48 applies to the applicant due to the Student visa refusal (as well as the BVA cancellation) and that will be the case whether or not the applicant is successful in this review.
It is significant, however, that if the BVA remains cancelled, the applicant may be unable to meet the requirements of PIC 4013(1)(a) for the purpose of the Student visa grant. (See Wang v MIAC [2009] FMCA 865 at [19]). If that interpretation of PIC 4013 is correct, even though the processing of the Student visa is an independent process which will continue irrespective of the present review, the applicant’s eligibility for the Student visa may be affected and if the applicant does not hold a substantive visa, he will be unable to seek other visas in Australia. The Tribunal accepts that this would cause significant hardship to the applicant, given the duration of his stay in Australia and the ties he has formed in this country.
The Tribunal gives weight to the fact that the applicant had actively engaged in rehabilitation, has completed multiple counselling sessions and other courses. The Tribunal also places weight on the applicant’s contribution to Australia through his academic research.
Having regard to all the circumstances, the Tribunal has decided to set aside the cancellation of the Bridging A visa, in order to enable the applicant to pursue the Student visa.
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