2008575 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 444 (Special Category) visa. The applicant, a New Zealand citizen, had been in Australia since 2008 and had a criminal history, for which he had been sentenced to imprisonment for less than one year. The Department of Immigration and Border Protection had identified the applicant as a behaviour concern non-citizen, leading to the cancellation of his visa. The applicant sought to have this cancellation decision set aside.

The primary legal issue before the Tribunal was whether the applicant's Subclass 444 visa should be cancelled, notwithstanding that a ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) had been established. This ground related to the risk to the health or safety of an individual or individuals. The Tribunal was required to consider the exercise of discretion in relation to the cancellation, taking into account various factors including the applicant's personal circumstances, his family ties in Australia and New Zealand, and Australia's international obligations, particularly the best interests of the applicant's children.

In reaching its decision, the Tribunal considered the applicant's expressed desire to remain in Australia to prove he could change and be present for his children, who were Australian citizens. It noted his limited ties to New Zealand, where his mother and stepfather resided, and his desire to live a better life in Australia. The Tribunal also acknowledged the potential hardship to his children and their mother if he were removed from Australia, as well as the financial hardship he might experience. Crucially, the Tribunal considered the Convention on the Rights of the Child, emphasizing the best interests of the child as a primary consideration. The Tribunal concluded that while the ground for cancellation existed, it was not a mandatory cancellation. After weighing all the circumstances, including the applicant's potential for rehabilitation and his involvement in his children's lives, the Tribunal decided not to cancel the visa.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 444 (Special Category) visa. The applicant was cautioned that further offending could lead to future visa cancellation and was encouraged to undertake rehabilitation and be involved in his children's lives.