HUSSEIN (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Partner (Provisional) (Class UF) visa, Subclass 309 (Spouse (Provisional)). The cancellation was based on the applicant's conviction for an offence. The Administrative Appeals Tribunal was required to consider whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was established, and if so, whether the Tribunal should exercise its discretion to cancel the applicant's visa. This involved assessing the applicant's claims of a genuine and continuing relationship with his partner, his financial contributions, his employment, the best interests of his children, and his rehabilitation efforts, against the evidence presented.

The Tribunal found that the ground for cancellation under section 116(1)(g) was satisfied. In considering the exercise of discretion, the Tribunal noted that while the applicant claimed remorse and that he and his partner were "working things out," there was a significant lack of documentary evidence to support the existence of a genuine and continuing spousal relationship. Despite the applicant's assertion that an apprehended domestic violence order prevented cohabitation, the Tribunal found the evidence regarding attempts to vary the order unconvincing and indicative of a potential reluctance from the partner, casting doubt on the mutuality of commitment to a shared life. The Tribunal also considered the late submission of evidence by the applicant to be unhelpful.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should be cancelled. Accordingly, the Tribunal affirmed the decision to cancel the applicant's Subclass 309 visa.