Bhandari (Migration)

The Administrative Appeals Tribunal considered the case of Mr. Bhandari, who held a Partner (Provisional) (Class UF) visa, subclass 309. The dispute arose from the Department's decision to cancel Mr. Bhandari's visa, which he sought to have reviewed. The Tribunal was tasked with determining whether the cancellation was warranted and, if so, whether discretion should be exercised to allow him to retain his visa.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) were established, and if so, whether the discretion to cancel the visa should be exercised in Mr. Bhandari's favour. This involved considering various factors, including the purpose of the visa, the applicant's ties to Australia, the potential hardship that cancellation would cause, and the best interests of any children involved.

The Tribunal found that the ground for cancellation under s 116(1)(g) was satisfied. However, as this ground did not mandate cancellation, the Tribunal proceeded to consider the exercise of its discretion. It acknowledged Mr. Bhandari's long-term residence in Australia, his established network of friends and family, and his Australian citizen daughter. Crucially, the Tribunal accepted that Mr. Bhandari's close relationship with his daughter and his desire to maintain a significant role in her life constituted a compelling need for him to remain in Australia, thereby fulfilling the purpose of the Partner visa. The Tribunal also noted the absence of any evidence of non-compliance with visa conditions and considered the potential financial and psychological hardship that cancellation would impose.

Ultimately, the Tribunal set aside the Department's decision to cancel Mr. Bhandari's visa and substituted a decision not to cancel it.