Nauer (Migration)

This matter concerned an appeal by the applicant, Nauer, against a decision to cancel his Subclass 444 (Special Category) visa. The cancellation was based on the applicant's criminal history, specifically charges related to domestic violence offences. The applicant had been living in Australia since 2001, with his last entry in 2015, and had strong social and family ties to the country, including a partner and five children, three of whom were Australian citizens.

The primary legal issue before the Tribunal was whether the discretion to cancel the applicant's visa should be exercised, given that the ground for cancellation did not mandate mandatory cancellation under section 116(3) of the *Migration Act 1958* (Cth). The Tribunal was required to consider various factors relevant to the exercise of this discretion, as outlined in departmental procedures and case law, including the purpose of the visa holder's stay, compliance with visa conditions, and the degree of hardship that cancellation might cause.

In its reasoning, the Tribunal acknowledged that while there were no specific mandatory considerations for visa cancellation discretion, it had regard to relevant circumstances. The Tribunal accepted that the applicant had a compelling need to remain in Australia due to his family, including his partner and five children, and that he had complied with his visa conditions. Crucially, the Tribunal found that cancelling the visa would cause significant hardship, including separation from his family, who were unlikely to relocate to New Zealand with him. The Tribunal also accepted evidence of the applicant's strong social links in Australia, his consistent employment, and his role as the primary financial provider for his family.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 444 visa, while noting that further offences could lead to future cancellation.