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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, who arrived in Australia as a child, had a substantial criminal record, including convictions for grievous bodily harm, assault occasioning bodily harm, and aggravated burglary with intent, with illicit drug use linked to his offending. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether representations made on the applicant's behalf were in accordance with the invitation to do so, and whether the discretion under s 501CA(4) of the *Migration Act 1958* (Cth) to revoke the cancellation decision was enlivened.

The Tribunal considered the applicant's submissions, including allegations that his initial migration agent was not registered at the time of making representations. However, the Tribunal found no evidence that the agent was unregistered when she acted for the applicant, and confirmed that the applicant and his agent had made representations as invited. Consequently, the Tribunal found that the Minister's discretion to consider revocation under s 501CA(4) was enlivened. The Tribunal's role was to conduct a merits review of the delegate's decision, not to examine any potential flaws in the delegate's process. The Tribunal noted that the facts of offending presented by the applicant were inconsistent with those upon which his conviction and sentence were based, and that written statements omitted details of relevant minor children. The Tribunal also considered the weight to be given to an expert report when the expert had not been provided with all relevant documents concerning the applicant's offending. The Tribunal was required to consider primary and other considerations, including the protection of the Australian community, the nature and seriousness of criminal offending, the risk to the community, parole status, completion of rehabilitation programs, the best interests of minor children, community expectations, the strength and duration of ties to Australia, impediments to return to New Zealand, and the impact of the COVID-19 pandemic. The Tribunal noted that the applicant was likely to be detained for an uncertain period if the decision was affirmed.