Cai (Migration)

This matter concerned an appeal by the applicant, Mr Cai, against the cancellation of his Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The cancellation decision was made by the Department of Home Affairs, and the applicant subsequently sought review by the Administrative Appeals Tribunal. The dispute centred on whether the Tribunal should exercise its discretion to cancel the applicant's visa, particularly in light of a criminal charge and a subsequent guilty plea, and the breakdown of his relationship with his spouse.

The primary legal issues before the Tribunal were whether grounds for cancellation existed under section 116(1)(g) of the Migration Act 1958 (Cth), which permits cancellation if the Minister is satisfied that the person has been convicted of an offence, and whether, in the exercise of its discretion, the visa should be cancelled. The applicant argued that the conviction occurred after the primary decision and that it would be unfair to rely on circumstances that did not exist at that time.

The Tribunal, applying the principles from *Shi v MARA* (2008) 235 CLR 286, held that it was entitled to consider circumstances existing at the time of its own decision, including the applicant's conviction for a criminal offence. Despite finding that grounds for cancellation existed, the Tribunal considered the exercise of its discretion. It noted that while the primary purpose of the Partner visa was no longer fulfilled due to the relationship breakdown, the applicant had a child from the relationship and a parenting order allowing him access. The Tribunal accepted that maintaining this relationship constituted a compelling need for the applicant to remain in Australia. Furthermore, the Tribunal found no evidence of non-compliance with the conditions of his Partner or bridging visas, although his previous Student visa had been cancelled for non-compliance. Ultimately, considering all circumstances, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.