1710983 (Migration)

The Administrative Appeals Tribunal considered a case involving an applicant for a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The dispute centred on the cancellation of the applicant's visa due to concerns about family violence and the risk posed to his former partner and child. The applicant disputed the occurrence and severity of the alleged family violence, which included an assault conviction and a Violence Restraining Order (VRO).

The primary legal issue before the Tribunal was whether the applicant's conduct constituted family violence, thereby triggering the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth). If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account the best interests of the child and the potential hardship to the applicant.

The Tribunal found that the applicant had engaged in conduct involving violence or a threat of violence towards his wife, giving significant weight to his assault conviction and the VRO. It concluded that the applicant's presence posed a risk to the safety of his partner and child, satisfying the criteria for cancellation under section 116(1)(e). In exercising its discretion, the Tribunal acknowledged the applicant's desire to remain in Australia for his child and the existence of supervised access orders granted by the Family Court. However, it determined that the nature and circumstances of the offence, coupled with the ongoing VRO designed to protect the child, outweighed other considerations, including the hardship the applicant might experience.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 820 (Spouse) visa.