Atray (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Partner (Temporary) (Class UK) visa, Subclass 802 (Spouse) visa, held by the applicant. The cancellation was based on criminal convictions for assault occasioning actual bodily harm, for which the applicant received community correction orders, and an apprehended domestic violence order. The applicant conceded that the grounds for cancellation existed but argued that the discretion to cancel the visa should not be exercised.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the visa. The relevant prescribed ground was found in reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth).

The Tribunal found that the ground for cancellation was established due to the applicant's criminal convictions and the apprehended domestic violence order. However, as the cancellation was not mandatory under s 116(3), the Tribunal proceeded to consider the exercise of discretion. The Tribunal had regard to the applicant's remorse, his long-standing and genuine relationship with his spouse, and the significant financial, physical, and emotional support he provided to his wife, who suffered from multiple ailments. The Tribunal also considered the positive impact the applicant had on his stepson. Despite the seriousness of the domestic violence convictions, the Tribunal was impressed by the continued support and belief in the applicant from his spouse, who viewed him as the head of the family and primary provider. The Tribunal accepted that the applicant's continued presence in Australia was essential for the financial stability and well-being of his family.

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