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

This matter concerned an application by a New Zealand citizen for the revocation of the mandatory cancellation of his permanent residency visa. The cancellation had been triggered by the applicant failing to pass the character test due to his offending history. The applicant sought to have the cancellation revoked, arguing that there was "another reason" why the decision should be reversed.

The primary legal issue before the Tribunal was whether the mandatory cancellation of the applicant's visa should be revoked. This required the Tribunal to consider the relevant criteria set out in Direction No. 79, which guides delegates in exercising their discretion in such matters. Specifically, the Tribunal had to weigh the applicant's offending conduct against other considerations, including any non-refoulement obligations, the strength and nature of his ties to Australia, the impact on Australian business interests, the impact on victims, and the extent of impediments he might face if removed from Australia.

The Tribunal reasoned that while a non-refoulement obligation does not automatically preclude visa cancellation, it must be carefully weighed against the seriousness of the offending conduct. The Tribunal also considered the applicant's length of residence in Australia, his family and social links, and the potential impact of removal on his immediate family. The Tribunal found that there was "another reason" why the delegate's decision not to revoke the cancellation should be reversed.

Consequently, the Tribunal set aside the delegate's decision and substituted its own decision, revoking the mandatory cancellation of the applicant's visa.