2104545 (Migration)

This matter concerned an appeal against the cancellation of a Bridging A visa (Subclass 010) held by the applicant. The dispute arose from the Minister's decision to cancel the visa under section 116(1)(e)(ii) of the Migration Act 1958 (Cth), on the grounds that the applicant's presence in Australia posed a risk to the safety of an individual or individuals. The applicant had a criminal history, including charges related to family violence and breaches of protection orders. The Administrative Appeals Tribunal was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal was required to consider whether the applicant's presence in Australia constituted a risk to the safety of an individual or individuals, as contemplated by section 116(1)(e)(ii) of the Act. This provision allows for visa cancellation if the Minister is satisfied that the visa holder's presence "would or might be, a risk to... the health or safety of an individual or individuals." The Tribunal noted that this ground does not require a direct, solid, or certain foundation, but can arise from the possibility of past events. Following the establishment of the ground for cancellation, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances, including matters raised by the applicant and relevant departmental policy.

The Tribunal found that the ground for cancellation under section 116(1)(e)(ii) was established, noting the applicant's criminal history, including family violence charges and breaches of protection orders. In considering the exercise of discretion, the Tribunal weighed various factors. It acknowledged the applicant's long period of residence in Australia, his claimed committed relationship with his partner and her son, and his paternal role in the child's life, which were factors weighing against cancellation. The Tribunal also noted the absence of any indication of visa condition breaches. However, it also considered the emotional and potential financial hardship to the applicant's partner and her son if the visa were cancelled, while also noting the existence of orders restricting cohabitation. Ultimately, after considering all circumstances, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.