1810355 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 444 (Special Category) visa of a New Zealand national. The applicant, who had resided in Australia since 2004, had his visa cancelled by a delegate primarily due to a pending charge of grievous bodily harm. The applicant had a history of court outcomes in Queensland for offences such as public nuisance, stealing, and failure to appear, though most resulted in fines without conviction. He contested the grievous bodily harm charge, which stemmed from an incident in 2017 and had not yet proceeded to trial.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was established, specifically whether the applicant's presence in Australia posed a risk to the safety of the Australian community or an individual. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal found that the ground for cancellation under s.116(1)(e)(i) was satisfied, concluding that the applicant's presence in Australia might pose a risk to the safety of the Australian community or a segment thereof, referencing the pending criminal charge. However, in exercising its discretion, the Tribunal afforded significant weight to the applicant's strong ties to Australia, including his Australian citizen son, parents, siblings, and extended family, and the emotional and financial hardship that cancellation would cause to both the applicant and his son. The Tribunal also noted the applicant's lack of immediate family in New Zealand and the fact that most of his past offending did not result in convictions.

Ultimately, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal cautioned the applicant that any future convictions were likely to result in a review of his visa status.