1906853 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 309 Partner (Provisional) visa held by the applicant. The dispute arose from the Minister's decision to cancel the visa on the grounds that the applicant's presence in Australia posed a risk to the safety of an individual, specifically his sponsor, who was also the mother of his Australian citizen child. This cancellation was based on the applicant's conviction for common assault against his sponsor and a pending charge for breaching an apprehended violence order (AVO) made in her favour.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Specifically, the Tribunal had to assess if the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of an individual. Following this, the Tribunal had to consider all relevant circumstances in deciding whether to cancel the visa, including the purpose of the visa grant, the breakdown of the relationship with the sponsor, the existence of an Australian citizen child, and the potential hardship to the applicant if removed from Australia.

The Tribunal reasoned that the ground for cancellation under section 116(1)(e) was established, noting that the applicant had been convicted of assault against his sponsor and an AVO was in place for her protection. The Tribunal interpreted "good order of the Australian community" to encompass activities that impact public order or disrupt the observance of the law. In exercising its discretion, the Tribunal considered that the applicant's visa was granted based on his relationship with the sponsor, which had since ended, and the sponsorship had been withdrawn. While acknowledging the existence of an Australian citizen child and the potential financial hardship the applicant might face upon return to Sudan, the Tribunal found that these factors were outweighed by the seriousness of the domestic violence conviction and the need to protect the sponsor.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 309 Partner (Provisional) visa.