Agwaig and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal by Agwaig against a mandatory cancellation of his visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The cancellation was based on Agwaig failing to pass the character test due to a substantial criminal record. The appeal was heard by Chris Puplick AM, Senior Member, of the Tribunal.

The primary legal issues before the Tribunal were whether there was another reason for the mandatory cancellation of Agwaig's visa to be revoked, and how the considerations outlined in Ministerial Direction No. 79 should be weighed. Specifically, the Tribunal was required to consider the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, and other considerations including international non-refoulement obligations, claims of harm and persecution, the strength and duration of ties to Australia, and the extent of impediments to removal.

The Tribunal reasoned that determinations as to the weight of various considerations were quintessentially matters for the Tribunal, referencing the Federal Court's decision in *Meyrick*. In assessing the protection of the Australian community, the Tribunal noted the seriousness of Agwaig's offending conduct, which included three terms of imprisonment for offences such as serious assault, property damage, stalking, and assault occasioning actual bodily harm. The Tribunal acknowledged the sentencing Magistrate's view that the latter offence was serious and concerning, and that Agwaig's prior criminal history was "not particularly good." However, the Tribunal also considered the Magistrate's findings regarding Agwaig's issues with alcohol and antisocial behaviour, his reasonably good prospects of rehabilitation, and the fact that these were considered "special circumstances." The Tribunal also considered Agwaig's statements of regret and his explanation for accepting a plea deal, which he stated was to return home to his children sooner.

The Tribunal set aside the decision under review and, in substitution, revoked the mandatory cancellation of Agwaig's visa, offering him a further opportunity to appreciate the serious obligations that come with it.