2000621 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Partner (Temporary) (Class UK) visa, Subclass 820, held by a Vietnamese national. The applicant's sponsor was an Australian citizen and his wife, who had a child from a previous relationship. The dispute arose following the applicant's criminal conviction and an intensive corrections order.

The Tribunal was required to determine whether the prescribed ground for cancellation under the Migration Regulations 1994, specifically regulation 2.43(1)(oa), was met, and if so, whether the discretion to cancel the visa should be exercised. This involved considering the applicant's personal circumstances, including his employment, participation in rehabilitation courses, and volunteering, as well as the potential hardship to his Australian citizen wife and step-child, particularly concerning the wife's mental health and the best interests of the child.

The Tribunal found that the ground for cancellation was established due to the applicant's criminal conviction. However, it then considered the exercise of discretion. The applicant presented evidence of his strong ties to Australia through his marriage, his role as the primary income earner, and the significant emotional and mental health impact cancellation would have on his wife, who had experienced a previous relationship breakdown and feared separation. The applicant also detailed his remorse, participation in rehabilitation programs for substance abuse, and engagement in charitable work. The Tribunal acknowledged the best interests of the child as a primary consideration under the Convention on the Rights of the Child, noting the potential impact of separation on the family unit.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal found that the applicant's rehabilitation efforts, his strong family ties in Australia, and the significant hardship his cancellation would cause to his Australian wife and step-child, particularly in light of the wife's mental health concerns and the best interests of the child, weighed against exercising the discretion to cancel the visa.