Paki (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Mr. Paki's Special Category (subclass 444) visa. Mr. Paki, a New Zealand national who had resided in Australia since childhood, had an extensive criminal record. The Tribunal was required to determine whether the ground for cancellation, specifically the risk to the Australian community under s 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 found that the ground for cancellation under s 116(1)(e)(ii) was established, acknowledging that the power to cancel a visa can arise from a possibility of risk. However, the Tribunal then considered the exercise of its discretion. It noted that the cancellation was not mandatory under s 116(3). In its assessment of the discretionary factors, the Tribunal gave significant weight to Mr. Paki's long-term residence in Australia, his strong family ties, his stable employment, and his intention to reside permanently. Crucially, the Tribunal considered the best interests of Mr. Paki's twin children, who lived with him and his partner, Ms. Watene. Ms. Watene provided evidence that she relied heavily on Mr. Paki's indispensable contribution to managing the household and caring for the children, particularly given her own physical limitations and the mental health issues of the children's mother. The Tribunal accepted that Mr. Paki's removal from Australia would cause acute financial, emotional, psychological, and developmental harm to the children and that Ms. Watene would be unable to cope without his assistance.

While acknowledging some mitigating factors in Mr. Paki's offending, the Tribunal did not consider that his offending arose from circumstances entirely beyond his control. Nevertheless, when weighing all the circumstances, including the significant hardship to his children and their primary caregiver, the Tribunal concluded that the visa should not be cancelled. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Paki's Subclass 444 visa.