1818183 (Migration)

This matter concerned the review of a decision by the Department of Home Affairs to cancel the Special Category (Temporary) (Class TY) visa, subclass 444, held by a New Zealand citizen. The cancellation was based on the applicant's criminal convictions and outstanding charges relating to domestic violence and drug use. The applicant, who had resided in Australia since childhood, was detained following the visa cancellation.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation under section 116(1)(e)(ii) of the *Migration Act 1958* (Cth) were made out. This section permits the cancellation of a visa if the Minister is satisfied that the presence of the visa holder in Australia is, or may be, a risk to the health or safety of an individual or individuals. The Tribunal was required to consider the applicant's history of domestic violence convictions and current charges, as well as drug-related offences, in determining if such a risk existed.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events creating a risk, it must also consider all relevant circumstances. In this case, the Tribunal noted that the domestic violence charges were outstanding and had not yet been heard by a court. Furthermore, the applicant had strict bail conditions, and his partner's children were unable to depart Australia. The Tribunal concluded that the decision to cancel the applicant's visa should be set aside.