Heke (Migration)

The Tribunal affirmed the decision to cancel the applicant's Subclass 444 (Special Category) visa. The applicant, a New Zealand citizen, had a history of criminal convictions in Australia, with total periods of incarceration exceeding 48 months. Despite previous warnings and a prior consideration for cancellation in 2014, the applicant continued to reoffend. The Department of Home Affairs had not processed a remittal of a previous bridging visa refusal, and the applicant remained in detention.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) were met, specifically whether the applicant's presence in Australia posed a risk to the health or safety of individuals or the good order of the Australian community. The Tribunal also considered whether to exercise its discretion to cancel the visa, having regard to all relevant circumstances.

The Tribunal reasoned that the applicant's extensive criminal history, including convictions for serious offences and a disregard for court orders and bail conditions, established that his presence in Australia constituted a risk to the safety of individuals and the good order of the community. The Tribunal noted that the expression "good order of the Australian community" encompasses activities that disrupt the observance of the law or create public disruption. While acknowledging the applicant's expressed remorse and efforts at rehabilitation, and considering submissions from his partner, the Tribunal found that these factors did not outweigh the risk posed by his continued offending. The Tribunal also noted a lack of evidence supporting the applicant's claims of financial and emotional support for his family and that his partner and children had not provided evidence to support his case.

Consequently, the Tribunal concluded that the grounds for cancellation were established and exercised its discretion to affirm the decision to cancel the applicant's visa.