Le (Migration)

This matter concerned an application to review the Minister's decision to cancel the visa of the applicant, Mr. Le. The applicant held a Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The cancellation was based on the Minister being satisfied that the applicant's presence in Australia posed a risk to the health or safety of an individual, specifically Ms. X, his former wife. The applicant had a history of domestic violence convictions against Ms. X, and further charges were pending at the time of the review.

The Administrative Appeals Tribunal was required to determine whether the ground for 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 visa. The Tribunal also considered the implications of a section 375A Certificate, which related to the confidentiality of certain departmental communications. The applicant did not make submissions regarding the Certificate, and the Tribunal found it to be valid.

The Tribunal found that the ground for cancellation under section 116(1)(e)(ii) was established, noting the applicant's convictions for common assault and property damage against Ms. X, and the issuance of apprehended domestic violence orders. The Tribunal also acknowledged the pending charges for further alleged domestic violence offences. However, in exercising its discretion, the Tribunal considered the applicant's compelling need to remain in Australia to support his two minor children, despite the cessation of his relationship with Ms. X. The Tribunal accepted the applicant's evidence regarding his active involvement in his children's lives and his desire to provide them with emotional and financial support. The Tribunal also noted the pending criminal matter as a further compelling reason for the applicant to remain in Australia.

Ultimately, the Tribunal concluded that while the ground for cancellation existed, the compelling circumstances, particularly the best interests of the children and the applicant's need to remain for his pending legal matters, weighed against cancelling the visa. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 820 visa.