Cao (Migration)

This matter concerned an appeal by Mr Cao against the cancellation of his Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The cancellation was based on criminal convictions, for which Mr Cao had received a period of imprisonment and a community corrections order. The ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was conceded by Mr Cao. The primary issue before the Tribunal was whether, in the exercise of its discretion, the visa should be cancelled, given that the ground for cancellation did not mandate it.

The Tribunal was required to determine whether to exercise its discretion to cancel Mr Cao's visa. In doing so, it considered various factors, including the purpose of Mr Cao's stay in Australia, his compliance with visa conditions, and the potential hardship that cancellation might cause. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal reasoned that while the ground for cancellation was established, it was not a mandatory cancellation. It noted that Mr Cao had arrived in Australia at the age of 17 to study and had subsequently been granted a Partner visa. The Tribunal accepted that Mr Cao's relationship with his partner was genuine and ongoing, and that his partner was financially and emotionally reliant on him, particularly in relation to mortgage repayments and her ability to continue her studies. The Tribunal also considered Mr Cao's young age at the time of the offences, his cooperation with authorities, his repayment of funds, his guilty plea, his remorse, and his low risk of reoffending. Weighing these factors, the Tribunal concluded that the circumstances did not warrant visa cancellation.

Consequently, the Tribunal set aside the decision to cancel Mr Cao's visa and substituted a decision not to cancel his Subclass 820 visa.