Malith (Migration)

The Administrative Appeals Tribunal (AAT) considered an application for review by Mr Malith concerning the cancellation of his Subclass 444 (Special Category) visa. The dispute arose from criminal charges faced by Mr Malith, which led to his immigration detention and the subsequent cancellation of his visa. The AAT was tasked with determining whether the cancellation decision was justified.

The primary legal issue before the Tribunal was whether it retained jurisdiction to consider Mr Malith's application for review, given it was lodged out of time. If jurisdiction was established, the Tribunal then had to determine whether to exercise its discretion to cancel Mr Malith's visa, considering the circumstances of his offending, his participation in rehabilitation, his changed circumstances, and the potential hardship to his family, particularly his children.

The Tribunal found that the primary decision to cancel Mr Malith's visa was defective, which conferred jurisdiction to consider the application for review, notwithstanding it was made out of time. In exercising its discretion regarding visa cancellation, the Tribunal had regard to the purpose of Mr Malith's stay in Australia, which was to settle permanently with his family and pursue better opportunities. It also considered his compliance with visa conditions, noting there was no evidence of non-compliance. Crucially, the Tribunal weighed the hardship that cancellation would cause to Mr Malith's partner and two minor children, acknowledging the importance of the children's best interests and the potential financial and emotional strain on the family. The Tribunal also noted that the criminal charge that formed the primary basis for cancellation had been withdrawn, with a plea of guilty entered for a lesser charge.

Ultimately, the Tribunal concluded that, considering all the circumstances, the cancellation of Mr Malith's visa was not warranted. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 444 (Special Category) visa.