Carr (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Special Category (Subclass 444) visa held by Mr Ryan Damian Carr, a New Zealand citizen. Mr Carr had been in Australia since childhood and had Australian-born children. The cancellation was based on the ground that his presence in Australia was, or might be, a risk to the health or safety of individuals, pursuant to s 116(1)(e)(ii) of the *Migration Act 1958* (Cth). This followed a previous mandatory cancellation of his visa under s 501(3A) of the Act due to a substantial criminal record, which had later been revoked under s 501CA(4). The current cancellation consideration was based on Mr Carr's convictions for unlawful possession of weapons in November 2017.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(e)(ii) was established. A related question concerned the relevant time for assessing the facts and circumstances when determining if this ground existed. The Tribunal also had to consider whether, if the ground was established, the power to cancel the visa should be exercised as a matter of discretion.

The Tribunal reasoned that for a cancellation ground under s 116(1)(e)(ii), the assessment of whether the applicant's presence would or might pose a risk to safety should be made at the time of the Tribunal's decision, not solely at the time of the delegate's decision. This interpretation was based on the wording of the provision, which contemplates intervening events and does not contain a specific temporal limitation. The Tribunal considered all available information, including events occurring after the delegate's decision. Having assessed the matter afresh, the Tribunal concluded that the ground for cancellation was established. Furthermore, the Tribunal found that the discretionary matters weighed in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr Carr's Special Category (Subclass 444) visa.