Brown (Migration)

The Administrative Appeals Tribunal considered the case of Mr Brown, who sought review of a decision to cancel his Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)). The cancellation was based on the ground that his presence in Australia posed a risk to the safety of the Australian community or an individual, stemming from charges of threatening violence and assault occasioning actual bodily harm, and a prior conviction for common assault involving domestic violence.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 was made out, and if so, whether the discretion to cancel the visa should be exercised. The legal issue involved assessing the risk posed by the applicant's presence in Australia, considering the nature of the criminal charges and conviction, and then evaluating all relevant circumstances in deciding whether to cancel the visa.

In its reasoning, the Tribunal found that the ground for cancellation under section 116(1)(e)(i) was satisfied, acknowledging that the power to cancel can arise from past events and the possibility of future risk. However, the Tribunal then proceeded to consider the exercise of discretion. It weighed various factors, including the applicant's employment as a skilled drainer in a supervisory role, his employer's intention to support a permanent residency application, and the applicant's positive steps to address his behaviour. The Tribunal concluded that, having regard to all the circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the delegate's decision to cancel the visa and substituted a decision not to cancel Mr Brown's Subclass 457 visa.