2001157 (Migration)

This matter concerned an appeal against the cancellation of a Partner (Temporary) (Class UK) visa, Subclass 820, and a Bridging A visa, Subclass 010. The applicant's visas had been cancelled under section 116(1)(e) of the Migration Act 1958 (Cth) on the basis that his presence in Australia posed a risk to the health or safety of individuals. The delegate who made the original decision relied on criminal charges of aggravated assault and an act of gross indecency against the applicant, as well as a Domestic Violence Order (DVO) in place against him.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(e) were established, and if so, whether the discretion to cancel the visas should be exercised. The Tribunal was required to consider the applicant's submissions, including the withdrawal of the criminal charges, his Australian Federal Police check clearance, the existence of a DVO, and the potential impact of cancellation on his family. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal found that while the existence of the DVO, coupled with the prior criminal charges, established the ground for cancellation under section 116(1)(e), the exercise of discretion required a broader consideration of all relevant circumstances. The Tribunal noted that the criminal charges had been withdrawn and the applicant had no convictions recorded on his police check. Crucially, the Tribunal considered the significant impact that cancellation would have on the applicant's Australian citizen children, one of whom has autism, and the severe distress and reliance of his Australian citizen wife, who suffers from trauma and Hepatitis B and relies on the applicant for support. The Tribunal concluded that, on balance, the negative consequences of cancellation on the family unit outweighed the risk posed by the applicant.

Consequently, the Tribunal set aside the decisions under review and substituted decisions not to cancel the applicant's Subclass 010 Bridging A visa and his Subclass 820 Partner (Temporary) visa.