Barber and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Barber, a citizen of New Zealand, and the Minister for Home Affairs concerning the mandatory cancellation of Mr Barber's visa. Mr Barber, who had resided in Australia for approximately 41 years, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) following multiple criminal convictions between 1987 and 2017, which resulted in him spending a significant portion of his adult life in prison or on remand. The delegate of the Minister had previously decided not to revoke the cancellation, and the AAT was asked to review this decision.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of Mr Barber's visa should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Act. This required the Tribunal to assess if any identified reason carried sufficient weight to warrant revocation, beyond the fact that Mr Barber might pass the character test. The Tribunal was guided by Ministerial Direction No. 79, which outlines factors to be considered, including the nature and seriousness of offending, the frequency of offending, whether the person had re-offended after formal warnings, and the best interests of minor children.

The Tribunal reasoned that Mr Barber's criminal conduct, encompassing over 100 separate offences across various categories including dishonesty, traffic/driving, violent offences, drug offences, and failure to appear, was objectively very serious. It noted that Mr Barber had consistently reoffended despite multiple prison sentences and two formal warnings from immigration authorities in 2008 and 2011, demonstrating a persistent disregard for Australian laws. While acknowledging Mr Barber's strong family ties in Australia, the Tribunal found that this consideration was outweighed by the gravity, cumulative effect, and habitual nature of his offending. The Tribunal concluded that Mr Barber constituted an unacceptable risk to the Australian community and that the primary consideration of protecting the Australian community weighed strongly against revocation.

Consequently, the Tribunal affirmed the decision to cancel Mr Barber's visa, finding that there was no "another reason" that carried sufficient weight to justify its revocation. The Tribunal determined that the protection of the Australian community was paramount and that Mr Barber's extensive criminal history and failure to heed warnings meant that any sympathy was substantially outweighed by the seriousness of his conduct.