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

This matter concerned an application to the Administrative Appeals Tribunal for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of New Zealand, had resided in Australia for 17 years and possessed an extensive criminal record, including repeated home burglaries and serious driving offences, commencing shortly after his arrival. The delegate's decision was based on the applicant failing to pass the character test due to his substantial criminal record, which triggered the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether there was another reason why the original decision to cancel the applicant's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Act. This involved considering the primary considerations outlined in Direction 99, specifically the protection of the Australian community and the expectations of the Australian community, against factors favouring revocation, such as the applicant's ties to Australia and his efforts at rehabilitation. The applicant argued that his long period of residency and his attempts at reform warranted revocation, referencing media reports suggesting a shift in ministerial policy regarding the deportation of New Zealand citizens.

Deputy President Boyle reasoned that while the applicant had resided in Australia for a significant period and presented evidence of rehabilitation, these considerations were outweighed by the serious and persistent nature of his offending and the high risk of re-offending. The Tribunal noted that it was bound by the terms of Direction 99, not by media reports of ministerial directives. The primary considerations of protecting the Australian community and community expectations were found to be paramount. The Tribunal concluded that there was no other reason to revoke the decision to cancel the applicant's visa.

Consequently, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.