1726910 (Migration)

This matter concerned an appeal against the cancellation of a Partner (Provisional) (Class UF) visa, Subclass 309. The applicant had been convicted of two offences, which formed the basis for the cancellation. The applicant argued that the visa should not be cancelled, citing potential significant hardship upon return to his home country and raising protection claims late in the application process.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation did not mandate mandatory cancellation under section 116(3) of the *Migration Act 1958* (Cth). The Tribunal was required to consider various factors, including the purpose of the visa, the applicant's compliance with visa conditions, and the degree of hardship that might be caused by cancellation.

The Tribunal reasoned that the purpose of a partner visa is to allow the holder to remain in Australia with their partner. In this case, the applicant and his partner had separated, and despite the existence of a marriage certificate, the Tribunal found no evidence of a mutual commitment to an ongoing spousal relationship, particularly in light of a violent offence committed by the applicant against his spouse and an apprehended violence order. The Tribunal also considered the applicant's claims of hardship upon return to his home country but found them unsupported by sufficient evidence, noting the applicant's failure to provide evidence of job searches or specific financial circumstances. The Tribunal concluded that the protection claims raised by the applicant could be more appropriately considered in a separate Protection visa application.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 309 visa, finding that, considering all the circumstances, the visa should be cancelled.