RAJIB (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) visa. The applicant, who had been charged with domestic violence offences, including assault occasioning actual bodily harm and intentionally choking a person with recklessness, sought to have the cancellation decision set aside. The delegate had formed the view that the applicant's presence in Australia posed a risk to the safety of an individual, specifically Ms Afrin, who was protected by an Apprehended Violence Order (AVO) against the applicant.

The primary legal issue before the Tribunal was whether the ground for cancellation under s.116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e) permits the Minister to cancel a visa if satisfied that the visa holder's presence in Australia is or may be, or would or might be, a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of an individual. The Tribunal was required to consider the applicant's admitted domestic violence, the existence of the AVO, and the criminal charges, in light of the legal principles established in cases such as *Gong v MIBP* and *Tien v MIMA*, which clarify that the power to cancel can arise on the possibility of past events and that "good order" concerns activities impacting public order or the observance of law.

The Tribunal reasoned that the ground for cancellation under s.116(1)(e) was established, noting the applicant's admission of domestic violence, the existence of the AVO naming Ms Afrin as the protected person, and the serious nature of the charges. In exercising its discretion, the Tribunal considered various factors, including the applicant's stated purpose for being in Australia (to support his wife's studies, which had been achieved), the temporary nature of the Subclass 485 visa, the fact that both parties were working in roles unrelated to their studies, and the potential hardship of cancellation. However, the Tribunal found that the primary purpose of their stay had been met, that Ms Afrin had not yet enrolled in further study, and that the parties could return to Bangladesh together, where they had family support. The Tribunal concluded that the degree of hardship was not significant and that the circumstances did not warrant setting aside the cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.