REN (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a decision to cancel the Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse), held by the applicant, REN. The dispute arose from REN's criminal convictions, which triggered the potential for visa cancellation. The AAT was tasked with determining whether, in the exercise of its discretion, the visa should be cancelled.

The legal issues before the Tribunal included whether the grounds for cancellation necessitated mandatory cancellation, and if not, how the discretion to cancel should be exercised. The Tribunal considered various factors, including the purpose of REN's visa, his compliance with visa conditions, and the degree of hardship that cancellation might cause. The Tribunal also had regard to the applicant's previous visa cancellation and period as an unlawful non-citizen, as well as the circumstances surrounding his offending and advice to plead guilty.

The Tribunal reasoned that the specific ground for cancellation did not mandate its imposition. In exercising its discretion, the AAT considered that REN was fulfilling the purpose of his Partner visa by living with his partner and awaiting a permanent visa outcome. While acknowledging REN's past non-compliance with visa conditions, the Tribunal noted there was no evidence of such non-compliance in relation to his current Partner visa. Crucially, the Tribunal found that cancelling REN's visa would cause considerable hardship to him, his partner, and their young Australian citizen child, particularly given his partner's mental health issues and the potential for separation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel REN's Subclass 820 visa.