Al-Masri (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose visa was subject to cancellation. The dispute arose from the applicant's conviction for a serious indictable offence, specifically aggravated break and enter with intent to commit a serious indictable offence, involving deprivation of liberty. The applicant had been convicted of this offence and was awaiting sentencing at the time of the hearing.

The primary legal issue before the Tribunal was whether to affirm the decision to cancel the applicant's visa. This involved determining if a ground for cancellation existed under section 116(1)(e)(i) of the Migration Act 1958 (Cth), and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider various factors, including the purpose of the applicant's stay, compliance with visa conditions, the degree of hardship that might be caused by cancellation, and the circumstances surrounding the commission of the offence.

The Tribunal found that the applicant's conviction for a serious indictable offence constituted a ground for cancellation under s 116(1)(e)(i). In exercising its discretion, the Tribunal acknowledged the applicant's compelling need to remain in Australia due to his Australian-born daughter and the significant emotional hardship his absence would cause to his wife and child. However, the Tribunal gave little weight to claims of financial hardship, noting the applicant was not earning a wage. Crucially, the Tribunal found the applicant to be an unreliable witness and gave no weight to his claims that the offence was beyond his control due to drug use or that he was merely an accomplice to an unnamed individual. The Tribunal noted the serious nature of the offence, which involved a violent assault on the victim, and found that the applicant's assertions regarding his involvement and the circumstances were not credible.

Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be affirmed. Despite acknowledging the potential hardship to his family, the Tribunal found that these mitigating factors were not sufficient to outweigh the seriousness of the offence and the applicant's lack of credibility regarding his involvement.