Macdonald (Migration)

This matter concerned an appeal by the applicant, Mr Macdonald, against the decision of the Department of Home Affairs to cancel his Subclass 444 (Special Category) visa. The cancellation was based on the ground that the applicant’s presence in Australia may be or might be a risk to the safety of individuals or to the safety of the Australian community, pursuant to s 116(1)(e) of the Migration Act 1958 (Cth). The applicant, who had been living in Australia since 2004, had a history of drug and alcohol abuse and a criminal history, which the Department considered indicated a risk of further offending.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) was established and, if so, whether the applicant's visa should be cancelled, considering the exercise of discretion. The applicant contended that his Aboriginal descent, his desire to learn more about his heritage, and the presence of his immediate family, including a minor daughter, in Australia constituted compelling reasons for him to remain. He also stated that Australia offered better opportunities than New Zealand.

The Tribunal accepted that the applicant was fulfilling the purpose of his stay and acknowledged his desire to remain in Australia to learn about his background and be with his family. However, it found that his Aboriginal descent and family connections, including his daughter, did not constitute compelling reasons for him to remain, particularly as he was an adult capable of independence and relationships could be maintained from overseas. The Tribunal also found that the claim of better opportunities in Australia was not sufficiently substantiated. Ultimately, the Tribunal placed the greatest weight on the circumstances giving rise to the ground for cancellation and concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel the applicant’s visa.