1816963 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 444 (Special Category) visa held by the applicant, who had an extensive criminal history and presented a risk to the Australian community. The applicant, who had resided in Australia since childhood, had a history of drug use, mental health issues, and a series of escalating offences.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) was made out, specifically whether the applicant's presence in Australia posed or might pose a risk to the health, safety, or good order of the Australian community. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under section 116(1)(e)(i) was established, acknowledging the applicant's criminal history and the potential risk to the community. However, the Tribunal then exercised its discretion not to cancel the visa. It reasoned that while the applicant's criminal history was significant, his long-term residence in Australia, the absence of immediate family in New Zealand, his ongoing efforts to address addiction and mental health issues with family support, and his truthful demeanour before the Tribunal weighed in favour of not cancelling the visa. The Tribunal concluded that the positive steps the applicant was taking towards rehabilitation, supported by his family, indicated that his presence in Australia would not pose an unacceptable risk.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.