2002750 (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Bridging A (Class WA) visa and his Subclass 820 (Partner (Temporary)) visa. The cancellations were made under section 116(1)(e) of the Migration Act 1958 (Cth), which permits the Minister to cancel a visa if satisfied that the visa holder's presence in Australia is or may be a risk to the health or safety of an individual or individuals. The applicant had initially faced charges of aggravated assault and gross indecency, which were later withdrawn, but a Domestic Violence Order remained in place.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) was established, and if so, whether the discretion to cancel the visas should be exercised. The Tribunal found that the existence of the Domestic Violence Order, despite the absence of charges or convictions for its breach, established a possibility that the applicant could pose a risk to the protected person in the future, thus satisfying the ground for cancellation. However, the Tribunal was not mandated to cancel the visas under section 116(3) and therefore had to consider the exercise of discretion.

In considering the exercise of discretion, the Tribunal had regard to all relevant circumstances, including the withdrawal of the criminal charges, the applicant's two minor Australian citizen children, the significant distress his wife would suffer if his visas were cancelled, and the support he provided to her and their children, one of whom has autism. The applicant's wife, an Australian citizen, relied heavily on his support due to her own trauma and health issues, and her psychologist's report indicated that her mental health had been negatively impacted by the applicant's arrest and legal proceedings. The Tribunal concluded that, considering the overall circumstances and particularly the potential impact on the family unit, neither visa should be cancelled.

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.