1719460 (Migration)

This matter concerned an appeal against the cancellation of a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant, who had been charged and convicted of serious offences against his wife, argued that while he conceded his presence in Australia might pose a minimal risk to his wife's safety, this risk was outweighed by other factors. The applicant also highlighted his genuine relationship with his wife and their two Australian citizen children, emphasizing the emotional and psychological hardship that cancellation would cause. The decision was made by Nicola Findson, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa under section 116(1)(e) of the Migration Act 1958 (Cth) should be upheld. This section permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health or safety of an individual or individuals. The Tribunal was required to determine if this ground for cancellation was established and, if so, whether the discretion to cancel the visa should be exercised, considering all relevant circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(e) was established, as the applicant's convictions meant his presence in Australia could be considered a risk to his wife's safety. However, the Tribunal then considered whether to exercise its discretion to cancel the visa. It noted the applicant's favourable demeanour as a witness and acknowledged the genuine nature of his relationship with his wife and their children, which weighed in favour of not cancelling the visa. The Tribunal also considered the applicant's compliance with visa conditions, noting that his Partner visa was not subject to specific conditions, although he had breached bail conditions imposed after being charged with offences against his wife. Despite the breach of bail, the Tribunal concluded that, considering all circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.