2003678 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), held by the applicant. The cancellation was based on the applicant's conviction for cultivating a commercial quantity of cannabis in Victoria in November 2019, for which he received a period of imprisonment. The applicant conceded that the grounds for cancellation existed under regulation 2.43(1)(oa) of the Migration Regulations 1994, read with section 116(1)(g) of the Migration Act 1958.

The Tribunal was required to determine whether, in the exercise of its discretion, the applicant's visa should be cancelled, notwithstanding the existence of the ground for cancellation. This involved considering all relevant circumstances, including matters of government policy and specific factors presented by the applicant. The Tribunal noted that the ground for cancellation in this instance did not mandate cancellation under section 116(3) of the Act.

In reaching its decision, the Tribunal considered the purpose of the applicant's stay in Australia, his compliance with visa conditions, and the potential hardship that cancellation would cause. The Tribunal was satisfied that the applicant's wife suffered severe mental and physical health issues, including depression and fertility problems, and that her mental health would deteriorate if the applicant were required to depart Australia. The Tribunal also accepted that the couple had a compelling need to remain in Australia to access IVF treatment and that the applicant had stable employment and a mortgage. The Tribunal found that cancelling the visa would cause significant financial, emotional, psychological, and psychiatric hardship to both the applicant and his wife. Furthermore, the Tribunal noted the applicant's positive rehabilitative prospects, although this was not explicitly detailed in the provided text.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 820 visa.