Cooper (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Partner (Provisional) visa (subclass 309) held by Mr. Cooper. The cancellation was based on Mr. Cooper's conviction for an offence involving contravening a prohibition or restriction in an apprehended domestic violence order and damaging property, for which he received a conditional release order.

The primary legal issue before the Tribunal was whether, having found that a ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) existed, the Tribunal should exercise its discretion not to cancel Mr. Cooper's visa. This required the Tribunal to consider various factors, including the purpose of his travel and stay, the genuineness and ongoing nature of his relationship with his sponsor, his compliance with visa conditions, and the degree of hardship that cancellation might cause.

The Tribunal acknowledged that the ground for cancellation was established but noted it did not mandate cancellation. In exercising its discretion, the Tribunal accepted that Mr. Cooper's relationship with his sponsor was genuine and ongoing, fulfilling the purpose of his visa. While the assertion of severe hardship to his children in Ghana was not supported by probative evidence, the Tribunal accepted that cancellation could cause emotional hardship to his sponsor, given their long-term relationship and Mr. Cooper's significant ties to Australia since 2017. Considering all circumstances, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Cooper's Subclass 309 visa.