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

This matter concerned an application by Mr Aitchison, a New Zealand citizen who had resided in Australia for over 30 years, to review the decision not to revoke the mandatory cancellation of his visa on character grounds. Mr Aitchison's visa was cancelled under s 501(3A) of the *Migration Act 1958* (Cth) following serious convictions for obtaining financial advantage by deception, which resulted in an eight-year prison sentence and an order to make substantial reparation to the Commissioner of Taxation. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether there was "another reason" why the visa cancellation should be revoked, pursuant to s 501CA(4)(b)(ii) of the Act.

The Tribunal was tasked with considering whether any factors presented by Mr Aitchison carried sufficient weight to satisfy the decision-maker that the visa cancellation should be revoked. This involved assessing various considerations, including Mr Aitchison's personal circumstances, his criminal history, his ties to Australia, his potential impact on the Australian community, and any potential impediments to his re-establishment in New Zealand. The Tribunal considered evidence relating to his health, his expressed desire to work, his family relationships in Australia, and the availability of services in New Zealand.

In its reasoning, the Tribunal found that Mr Aitchison did not pass the character test due to the seriousness of his offending, which involved defrauding the Commonwealth Government of almost $6 million, a significant portion of which remained unrecovered. While acknowledging his strong ties to Australia and his aspirations to work, the Tribunal gave greater weight to the primary considerations, including the deemed community expectation against revocation and the real, albeit low, risk of recidivism. The Tribunal was not satisfied that non-refoulement obligations arose, nor that Mr Aitchison faced a binary choice regarding essential medications or daily necessities in New Zealand. The Tribunal concluded that the circumstances did not warrant revocation of the visa cancellation.

Consequently, the Tribunal affirmed the decision not to revoke the visa cancellation. This means Mr Aitchison is required to be removed to New Zealand as soon as is reasonably practicable, subject to any potential delays due to current circumstances.