1730681 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 444 (Special Category) visa of the applicant. The dispute arose from the Department's satisfaction that the applicant's presence in Australia posed a risk to the Australian community or a segment thereof, and that the applicant had a significant criminal history. The Tribunal was required to determine whether the ground for cancellation existed and, if so, whether the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal examined the provisions of section 116(1)(e) of the Migration Act 1958 (Cth), which permits visa cancellation if the Minister or Tribunal is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of individuals. The Tribunal noted that the threshold for this ground is not high, requiring only a possibility of risk. While acknowledging the applicant's past serious offending and the risk this history presented, the Tribunal also considered the applicant's subsequent rehabilitation. This included continued participation in drug and alcohol programs, anger management, steady employment, community involvement, and improved relationships.

The Tribunal concluded that while the applicant's entire history indicated a past risk, his more recent conduct demonstrated significant positive changes. In exercising its discretion regarding cancellation, the Tribunal weighed the applicant's compelling need to remain in Australia to maintain his relationship with his partner and stepchild, and his compliance with visa conditions. Despite the past family violence history, the Tribunal found that the applicant's commitment to his current relationships and his substantial life changes weighed heavily in favour of not cancelling the visa. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.