Bhachi (Migration)

The Administrative Appeals Tribunal considered the case of Mr Bhachi, who sought review of the cancellation of his Subclass 820 (Spouse) visa. The dispute arose from the applicant's criminal history, specifically charges and a conviction, which led the delegate to believe he "may" be a risk to the Australian community. The applicant had three Australian citizen children, and their best interests were a significant consideration in the review.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. This involved assessing whether the applicant "is" or "may" be a risk to the Australian community, despite evidence of rehabilitation, including being drug-free for nearly two years, having a strong relationship with his children, and possessing a support network. The Tribunal also had to consider the consequences of cancellation in the context of the applicant's pending Subclass 801 (Spouse) visa application and the operation of bridging visas.

The Tribunal reasoned that while the applicant had made significant progress in turning his life around, his past record, driven by severe drug addiction, meant that the statutory test for cancellation was met. The Tribunal found that he "may" be a risk to the Australian community, thus satisfying the ground for cancellation under s 116(1)(e). However, this ground did not mandate cancellation, allowing the Tribunal to consider its discretion. In exercising this discretion, the Tribunal noted the unusual situation where the applicant's Subclass 820 visa was cancelled, but his application for the Subclass 801 visa remained pending, meaning he was not facing immediate detention but would revert to a bridging visa. The Tribunal considered the compelling need for the applicant to remain in Australia, particularly in light of his children.

Ultimately, the Tribunal set aside the decision under review, finding that the consequences of cancellation, particularly in relation to the pending Subclass 801 visa and the applicant's role as a parent to Australian citizens, weighed against exercising the discretion to cancel the visa.