Bhuiyan (Migration)

This matter concerned an appeal by Mr. Bhuiyan against a decision to cancel his Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)). The cancellation was based on a criminal conviction, with the Department assessing a risk to the Australian community. Mr. Bhuiyan argued that despite the conviction, there were compassionate circumstances that warranted the exercise of discretion not to cancel his visa. The appeal was heard by the Tribunal.

The primary legal issue before the Tribunal was whether to exercise its discretion to cancel Mr. Bhuiyan's visa, notwithstanding his criminal conviction. This required the Tribunal to consider various discretionary factors, including the purpose of his stay in Australia, his compliance with visa conditions, and the degree of hardship that cancellation would cause to him and his family. The Tribunal was also required to assess the risk of reoffending and any compassionate grounds presented.

The Tribunal reasoned that while there were no specific matters mandated by legislation for consideration, it had regard to relevant circumstances outlined in departmental procedures. It found that Mr. Bhuiyan had entered Australia to be in a genuine relationship with his partner, had complied with his visa conditions, and had made significant sacrifices, including leaving a good job overseas and a potential job in Australia, to be with his partner. The Tribunal accepted that visa cancellation would cause considerable financial and emotional hardship to Mr. Bhuiyan and his partner, particularly given her past experiences of violence and her reliance on his emotional support. Crucially, the Tribunal found a very low risk of reoffending.

In light of the circumstances of the offence, the low risk of reoffending, and the overall compassionate grounds, the Tribunal concluded that the visa should not be cancelled. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Bhuiyan's Subclass 309 visa.