Sukhwinder Singh (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Sukhwinder Singh's Subclass 309 Provisional Spouse visa. The cancellation was based on the delegate's view that grounds existed under section 116(1)(g) of the *Migration Act 1958* (Cth) and regulation 2.43(1)(t) of the *Migration Regulations 1994* (Cth), arising from the applicant being in possession of a mobile phone containing objectionable material. The applicant sought review of this cancellation decision before the Migration and Refugee Division of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Act, as prescribed by regulation 2.43(1)(t), was made out. This regulation pertains to the importation of prohibited goods. If this ground was established, the Tribunal was then required to consider whether, in the exercise of its discretion, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal acknowledged the applicant's evidence that he did not control the content on the phone, which was used by others, and that he lacked the time or skills to check its contents. However, the Tribunal found that the applicant's possession of the phone at the time of his entry into Australia could give rise to a reasonable belief that he had imported goods to which regulation 4A of the *Customs (Prohibited Imports) Regulations 1956* (Cth) applied, and that he had not obtained permission to import such goods. Despite this finding, the Tribunal considered the exercise of discretion. It had regard to the applicant's genuine and committed relationship with his Australian citizen partner, which constituted the purpose of his visa and a compelling need to remain in Australia. While not satisfied by the applicant's assertions regarding his partner's mental health without medical evidence, the Tribunal ultimately concluded that the decision to cancel the visa should be set aside.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 309 visa.