1830074 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 444 (Special Category) visa of an applicant. The dispute centred on whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community or a segment thereof, as provided by section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had a criminal history involving serious offences against the person, including breaches of protection orders.

The Tribunal was required to determine if the ground for cancellation under section 116(1)(e) was established and, if so, whether to exercise its discretion to cancel the visa, considering all relevant circumstances. The legal issues included the interpretation of "risk" under section 116(1)(e), the threshold for establishing such a risk, and the genuineness of the applicant's remorse in light of his criminal conduct and lack of candour. The Tribunal also had to weigh factors favouring or disfavouring cancellation, such as the applicant's family ties in Australia, financial support for his family, the degree of hardship cancellation would cause, and the circumstances surrounding his offending.

The Tribunal found that the applicant's criminal record, particularly the breaches of protection orders, established that his presence in Australia was or might be a risk to the safety of the Australian community or a segment of it, consistent with the amended threshold in section 116(1)(e). While acknowledging the applicant's expressed remorse and his claims of financial support for his family, the Tribunal found his lack of candour regarding his offending cast doubt on the genuineness of his remorse. The Tribunal also noted the lack of face-to-face contact with his children since 2015. Despite considering the emotional hardship cancellation might cause, the Tribunal concluded that the circumstances of the offending were not beyond the applicant's control and, on balance, affirmed the decision to cancel the visa.