1812966 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Partner (Provisional) (Class UF) visa, Subclass 309. The applicant, who was married to an Australian citizen and had two children from that relationship, as well as caring for a stepchild, faced cancellation of his visa due to being charged with criminal offences. The applicant argued that cancellation would cause considerable hardship to himself and his family, and that the best interests of the children were paramount. The decision was reviewed by the Tribunal.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel the applicant's visa, notwithstanding that a ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) existed. The Tribunal was required to consider various factors in exercising this discretion, including the purpose of the visa, the applicant's compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal also had regard to the best interests of the applicant's children, who were Australian citizens.

The Tribunal found that the ground for cancellation under section 116(1)(e)(i) was established, but that mandatory cancellation was not triggered. In considering its discretion, the Tribunal noted the applicant's compelling need to remain in Australia to be with his immediate family, including his two young children and stepchild, and that his children could not live in Nigeria due to safety risks. The Tribunal accepted that the applicant was fulfilling the purpose of his visa and that he had no known breaches of his visa conditions. Furthermore, the Tribunal found that cancelling the visa would cause extreme financial and emotional hardship to the applicant's family, as he was the primary breadwinner and his partner was a full-time student. The Tribunal also noted the applicant's difficulty in finding employment due to his visa status.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 309 visa.