Galo (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 444 (Special Category) visa was subject to cancellation. The applicant had been convicted of multiple family violence offences, leading to concerns that their presence in Australia posed a risk to the community, specifically to an individual subject to a domestic violence order. The Tribunal was required to determine whether the grounds for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were met and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant's presence in Australia constituted, or might constitute, a risk to the health or safety of an individual, thereby satisfying the ground for cancellation under s 116(1)(e). Following a finding that this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, weighing the grounds for cancellation against any grounds for reinstatement. The Tribunal was also required to consider the best interests of any children involved and the hardship that cancellation might cause.

In its reasoning, the Tribunal found that the applicant's conduct, including convictions for family violence offences, established that their presence in Australia was a risk to the health or safety of an individual. While this ground did not mandate cancellation, the Tribunal proceeded to consider its discretionary power. The Tribunal examined the applicant's submissions regarding his desire to remain in Australia for his five children, three of whom are Australian citizens, and to care for his partner who has a disability. However, the Tribunal noted that a domestic violence order was likely still in place, and there was no evidence that it would be lifted, casting doubt on the applicant's ability to continue as a carer. Furthermore, the Tribunal observed that alternative care arrangements had been made for the partner during the applicant's detention, suggesting that such arrangements could continue. The Tribunal concluded that the grounds for cancellation outweighed any grounds for reinstatement.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 444 (Special Category) visa, finding that cancellation would cause limited hardship and that the best interests of the children would not be adversely affected by the cancellation.