1935088 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under section 116 of the *Migration Act 1958* (Cth). The applicant, a New Zealand national, had resided in Australia for many years and had established a de facto relationship with an Australian citizen, with whom he had a child. The visa cancellation was based on the ground that the applicant’s presence in Australia posed a risk to the health, safety, or good order of the Australian community, stemming from his criminal convictions and drug addiction.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e)(i) of the Act was established, and if so, whether the Minister's discretion to cancel the visa should be exercised in the applicant's circumstances. The Tribunal was required to weigh the risk posed by the applicant's presence against factors that might weigh against cancellation, including his rehabilitation efforts, family ties in Australia, and the potential impact of cancellation on his Australian citizen child and fiancé.

The Tribunal found that the ground for cancellation under section 116(1)(e)(i) was established, acknowledging the applicant's criminal history and drug addiction. However, the Tribunal then considered the exercise of discretion. It noted significant changes in the applicant's circumstances since the delegate's decision, including becoming a father, finalising criminal matters, being released from prison, and continuing to receive strong support from his fiancé and her family. The Tribunal also had regard to the applicant's commitment to rehabilitation and stable accommodation and employment prospects. The Tribunal concluded that these factors provided a compelling reason for the applicant to remain in Australia to be with his family, and that cancellation would cause hardship.

The Tribunal set aside the delegate's decision to cancel the applicant's visa. The Tribunal also offered the applicant an unreserved apology for the significant delay in constituting his review and scheduling the hearing, noting that this delay was not in accordance with normal procedures for applicants in immigration detention.