Te Moananui (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant who held a Special Category (Temporary) (Class TY) visa, subclass 444. The dispute centred on whether the applicant's presence in Australia posed a risk to the Australian community or individuals, as contemplated by section 116(1)(e)(i) of the Migration Act 1958 (Cth). The applicant had a history of criminal charges, including drug-related offences and possession of items in public places.

The Tribunal was required to determine if the ground for cancellation under s.116(1)(e) was made out, considering the definition of "good order of the Australian community" as interpreted in relevant case law, which involves activities that impact public order or disrupt the observance of the law. Furthermore, the Tribunal had to exercise its discretion regarding whether to cancel the visa, taking into account all relevant circumstances, including government policy and matters raised by the applicant.

The Tribunal reasoned that while the applicant's criminal history, particularly the possession of items in a public place, indicated a potential risk, the offences were at the lower end of the seriousness scale. Crucially, the Tribunal found compelling evidence of the applicant's remorse and commitment to rehabilitation. The applicant had strong ties to Australia, including an Australian citizen partner who was pregnant with their third child, and Australian children from a previous relationship. He had no family in New Zealand and had lived in Australia since childhood. The Tribunal was persuaded by the applicant's and his partner's testimony that his time incarcerated and in detention had served as a significant wake-up call, leading to a cessation of drug use and a renewed commitment to his family and rehabilitation.

Consequently, the Tribunal concluded that the applicant would not be a risk to the Australian community or any individual. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 444 visa.