1827629 (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the Applicant's Subclass 444 (Special Category) visa. The Applicant, a New Zealand citizen who had resided in Australia since 2004, had his visa cancelled on 12 September 2018, following various criminal charges laid by Queensland Police in July 2018. The Applicant sought a review of this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out. This section permits the Minister to cancel a visa if 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 the health or safety of an individual. The Tribunal was required to determine if the Applicant's criminal conduct, including charges of contravening an intervention order, failing to comply with bail, aggravated assault, and sexual offences, posed such a risk.

The Tribunal considered the Applicant's criminal history alongside his changed personal circumstances and the support network available to him. It noted the Applicant's efforts to abstain from drug use, his healthy general appearance, and his removal from negative influences. Furthermore, the Tribunal accepted evidence regarding the Applicant's positive family relationships, including his close bond with his two sons and his good relationship with his former wife, who was unable to attend the hearing due to a family bereavement. Given these factors, the Tribunal concluded that it was not satisfied that the Applicant's presence in Australia constituted a risk to the health, safety, or good order of the Australian community, or the health or safety of any individual.

Consequently, the Tribunal found that the ground for cancellation under section 116(1)(e) of the Act was not established. The Tribunal therefore set aside the decision to cancel the Applicant's visa and substituted a decision not to cancel the Subclass 444 (Special Category) visa.