2306220 (Migration)

This matter concerned a review of the cancellation of a Class TY Subclass 444 Special Category (Temporary) visa under section 116(1)(e)(i) of the *Migration Act 1958* (Cth). The applicant, who had resided in Australia for nearly 20 years, had a lengthy criminal history, including convictions for drug-related offences, public nuisance, and assault. The delegate determined that the applicant's criminal behaviour indicated a risk to the safety of the Australian community and issued a notice of intention to cancel his visa. The applicant sought review of this decision.

The primary legal issues before the court were whether the ground for cancellation under section 116(1)(e)(i) was established, and if so, whether the power to cancel the visa should be exercised. This involved assessing the risk posed by the applicant's presence in Australia to the health, safety, or good order of the Australian community, considering all available information, including the nature of his convictions and his personal circumstances. The court was also required to consider the degree of hardship to the applicant and his family, the circumstances surrounding the grounds for cancellation, the legal consequences of cancellation, Australia's international obligations, and the best interests of the child.

The court found that while the ground for cancellation under section 116(1)(e)(i) was established due to the applicant's criminal history, the decision to cancel the visa was not justified. The court applied the principles that the assessment of risk must be based on all available information, including the applicant's personal circumstances at the time of the review, and that the ordinary meaning of "risk" as the chance of injury, loss, or hazard applies. In exercising its discretion, the court weighed the seriousness of the offending against factors such as the applicant's long period of residence in Australia, his strong family ties, the fact that many of his offences did not involve serious offending, and the potential impact on his child.

Ultimately, the court set aside the delegate's decision to cancel the applicant's visa and substituted a decision that the visa should not be cancelled.