Nusipepa (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Nusipepa, an applicant for a Partner (Provisional) (Class UF) visa, subclass 309. The dispute concerned the cancellation of the applicant's visa by the Department of Home Affairs, which the applicant sought to have reviewed by the Tribunal. The grounds for cancellation related to the risk posed by the applicant to the health, safety, or good order of the Australian community, stemming from assault charges and family violence, which had resulted in an apprehended violence order.

The primary legal issue before the Tribunal was whether the applicant's Partner (Provisional) visa should be cancelled, even though the ground for cancellation under s 116(1)(e) of the Migration Act 1958 (Cth) did not mandate cancellation. This required the Tribunal to consider the exercise of its discretion, weighing various factors including the purpose of the visa, the applicant's compliance with visa conditions, the hardship that cancellation might cause, and the circumstances surrounding the ground for cancellation.

The Tribunal acknowledged the applicant's stated purpose of remaining in Australia with his partner and children, and accepted that the presence of young children might suggest a compelling need to remain. It also noted the applicant's compliance with visa conditions and the potential for significant hardship to his family if he were required to leave Australia, including financial and emotional distress. However, the Tribunal also had regard to the serious nature of the assault charges and family violence, and the limited evidence of rehabilitation. Ultimately, the Tribunal concluded that, when considering all the circumstances, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 309 visa.