Cancellation of Bridging Visa E Under Regulation 2.43(1)(p)(ii) of the Migration Regulation

In the Federal Court (Full Court)’s case of SHAF (name redacted), it was decided that the Minister was allowed to cancel a BVE under reg 2.43(1)(p)(ii) based on charges against the visa holder, despite the fact that those charges were laid before the BVE grant.

 

Material Facts

 

The Appellant was charged with multiple criminal offences, his substantive visa was cancelled by the Minister under section 116(1)(e)(i) of the Migration Act 1958, which provided that the Minister may cancel a person’s visa if satisfied that the presence of the person ‘in Australia is or may be, or would or might be, a risk to’ the Australian community. The Appellant sought review of the decision. The review has not yet been determined.

 

Meanwhile, the Appellant applied and was granted a Bridging Visa E (BVE). The BVE was subsequently cancelled under section 116(1)(g) of the Act and regulation 2.43(1)(p)(ii) of the Migration Regulation 1994 which provided as follows:

 

Section 116 Power to cancel

(1)        … the Minister may cancel a visa if he or she is satisfied that:

              …

(g)  a prescribed ground for cancelling a visa applies to the holder.

 

Reg 2.43 Grounds for cancellation of a visa (Act, s 116)

(1)            For the purposes of paragraph 116(1)(g) of the Act… the grounds prescribed are the following:

(p)  in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa–that the Minister is satisfied that the holder:

(ii)  has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country;

 

Appellant’s Contention

The Appellant contended that, among other things, regulation 2.43(1)(p)(ii) only applies to a person who has been charged with an offence at a time when the person in fact holds a Bridging E visa.

 

The Full Court disagreed with the Appellant

 

The Full Court decided that the language regulation 2.43(1)(p)(ii), read in context, is clear. It does not matter when the charge occurred. All that matters is whether the holder of the visa “has been charged” at some time.

 

Getting Assistance

 

If you have had a substantive visa or bridging visa cancelled by the Department, you have limited time to apply for merits review. You should consider contacting us immediately at 02-27007200 or email us to book in a time at info@ahclawyers.com.

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