1725001 (Migration)

This matter concerned an appeal against the cancellation of a Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)). The applicant sought to have the cancellation decision set aside, while the Minister sought to affirm the cancellation. The Tribunal was required to determine whether the grounds for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The primary legal issues before the Tribunal were whether the applicant's presence in Australia posed a risk to the health and safety of an individual, as contemplated by section 116(1)(e) of the Migration Act 1958 (Cth), and whether compelling circumstances existed that would justify retaining the visa despite the grounds for cancellation. The Tribunal also considered the applicant's conduct in providing information to it, specifically in relation to an interim intervention order and the withdrawal of sponsorship.

The Tribunal found that the existence of an interim intervention order, naming the applicant's sponsor as the protected person, constituted evidence that the applicant's presence in Australia may be a risk to the health and safety of an individual. Furthermore, the Tribunal determined that the applicant had attempted to mislead it by failing to disclose a further interim intervention order made after an earlier one had been withdrawn, and by not disclosing the withdrawal of his sponsor's sponsorship. While acknowledging the applicant's compelling circumstances, including the birth of his Australian citizen child, the Tribunal concluded that the risk posed by the applicant, coupled with his conduct, outweighed these circumstances.

Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 309 visa.