Watson (Migration)

The Administrative Appeals Tribunal considered the case of a New Zealand citizen whose Subclass 444 (Special Category) visa was cancelled. The applicant, who had settled in Australia in 2008, sought a review of the delegate's decision to cancel his visa. The Tribunal received submissions from the applicant, including a detailed statement and a letter of support from his mother, and also obtained a "person history" report from the Queensland Police Service detailing his criminal charges and convictions.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 (Cth) was established. This section permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is, or may be, a risk to the health or safety of an individual or individuals. The Tribunal was also required to consider whether, having found a ground for cancellation, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal reasoned that the applicant's extensive criminal history, including convictions for assaults occasioning bodily harm, contravention of domestic violence orders, and breaches of bail, established that his presence in Australia posed a risk to the health and safety of individuals. The Tribunal noted that the power to cancel a visa under this section can arise from the possibility of risk, not requiring certainty. In exercising its discretion regarding cancellation, the Tribunal found that while the applicant had family ties in Australia, these were not as strong as his ties to family in New Zealand, and he had no partner or children in Australia. Furthermore, his employment situation was precarious, and his relationship with his sister was strained. The Tribunal concluded that the applicant's past violent behaviour and disregard for court orders, despite his expressed remorse and attempts at reform during incarceration, did not provide sufficient assurance of sustained positive change.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 444 visa.