D'Angelo (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 820 Partner (Temporary) visa was subject to cancellation. The dispute arose from the applicant's past behaviour, which led to a Protection Order being granted to his former partner, and the subsequent potential risk to the good order of the Australian community. The applicant was also seeking a Subclass 801 Partner (Residence) visa, with a child of the relationship and existing Family Court orders in place.

The Tribunal was required to determine whether the ground for visa cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) was made out, and if so, whether to exercise its discretion to cancel the applicant's visa. The relevant ground for cancellation concerned whether the visa holder's presence in Australia posed a risk to the health, safety, or good order of the Australian community. The Tribunal also had to consider all relevant circumstances in exercising its discretion, including government policy and the applicant's personal circumstances.

The Tribunal found that the ground for cancellation was made out, as the applicant's controlling and abusive behaviour on the night of 19/20 November 2017, which led to the Protection Order, demonstrated a lack of insight and indicated that his presence could be a risk to the good order of the community. However, in exercising its discretion, the Tribunal gave significant weight to the applicant's strong desire and existing arrangements to maintain a relationship with his child, [Child 1]. The Tribunal noted that the purpose of the Partner visa, particularly when a child of the relationship is involved and Family Court orders are in place, extends to enabling the applicant to remain in Australia to maintain that relationship, even if the relationship with the sponsor has ended.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 820 visa and substituted a decision not to cancel it.