1831540 (Migration)

This matter concerned a review by the Tribunal of a decision to cancel the applicant's visa under section 116 of the Migration Act 1958 (Cth). The applicant, a visa holder, appeared before the Tribunal with his registered migration agent. The Minister's power to cancel a visa under section 116 includes grounds where the Minister is satisfied that the visa holder's presence in Australia may pose a risk to the health or safety of an individual.

The Tribunal was required to determine whether the ground for cancellation existed under section 116(1)(e)(ii) of the Act, which relates to the risk posed by the visa holder's presence in Australia to an individual. If the ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances, including government policy and matters raised by the applicant.

The Tribunal found that the ground for cancellation was established. This was based on evidence that an Interim Intervention Order, later made final, had been issued against the applicant, protecting his wife and their daughter. The Magistrate had found that the applicant's victims were unsafe and in immediate need of protection, and the Tribunal was satisfied that the applicant's behaviour posed a risk to the safety of his wife and child. In considering the exercise of discretion, the Tribunal weighed various factors. While acknowledging the applicant's compelling reason to remain in Australia to maintain a parental relationship with his daughter, this was given less weight due to the applicant's past family violence. The applicant's compliance with visa conditions was neutral as there were none attached to his temporary partner visa. The Tribunal considered the potential hardship to the applicant and his family, including his health, but concluded that the seriousness of his violent behaviour, which breached Australian law and a court order, outweighed the anticipated hardship. The Tribunal also considered the best interests of the child, but given the prior court order for the child's protection from the applicant, this factor was given little weight against cancellation.

The Tribunal determined that the ground for cancellation under section 116(1)(e)(ii) was made out. After considering all relevant factors and exercising its discretion, the Tribunal decided to cancel the applicant's visa.