Au and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application by a New Zealand citizen for review of the Minister's decision not to revoke the mandatory cancellation of his Subclass 444 Special Category (Temporary) visa. The cancellation was based on the applicant failing to pass the character test due to a substantial criminal record. The Tribunal was required to determine whether the Minister's decision to affirm the cancellation was correct.

The primary legal issue before the Tribunal was whether the applicant's visa cancellation should be revoked, considering Ministerial Direction No. 90. This involved assessing the applicant's criminal history, the seriousness and nature of his offending, and any mitigating factors or compelling circumstances that might warrant revocation. The Tribunal also had to consider the applicant's ties to Australia, including his children and family, against the risk he posed to the Australian community.

The Tribunal affirmed the non-revocation decision. It found that the applicant had a persistent disregard for Australian laws, evidenced by a lengthy and varied criminal history spanning 17 years, including drug offences, vehicle offences, and breaches of conditional liberty. The Tribunal noted a trend of increasing seriousness in his conduct and found his explanations for past offending and failures to disclose offences unpersuasive. Despite acknowledging his children in Australia and some family ties, the Tribunal concluded that these did not outweigh the risk posed by his criminal conduct and the cumulative impact of his repeated offending on the community. The Tribunal applied the principles outlined in Ministerial Direction No. 90, focusing on the protection of the Australian community from serious conduct.