Rodriguez Durruthy (Migration)

The Administrative Appeals Tribunal considered the case of Mr Rodriguez Durruthy, who sought to challenge the cancellation of his Subclass 461 New Zealand Citizen Family Relationship (Temporary) visa. The cancellation was based on concerns regarding his criminal history and the potential risk he posed to the good order of the Australian community.

The primary legal issue before the Tribunal was whether the discretion to cancel Mr Durruthy's visa should be exercised, given that the ground for cancellation did not mandate it under section 116(3) of the Migration Act 1958 (Cth). The Tribunal was required to consider all relevant circumstances, including those outlined in the Department's Procedures Advice Manual, such as 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 accepted that Mr Durruthy's purpose for being in Australia was to be with his partner, a relationship which continued to exist and was supported by his partner and daughter. The Tribunal found no adverse information regarding his compliance with visa conditions. While acknowledging the potential emotional and financial hardship Mr Durruthy might face if forced to return to Cuba, particularly given his family's poverty there and his wife's settlement in Australia, the Tribunal also noted his assertion that they would attempt to obtain a New Zealand visa. Considering all these factors collectively, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel Mr Durruthy's visa and substituted a decision not to cancel his Subclass 461 visa.