Barsby 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's visa had been cancelled due to a substantial criminal record, specifically for attempted possession of synthetic cannabis with intent to sell or supply, alongside other historical drug, family violence, and general driving offences. The applicant, a 53-year-old man who arrived in Australia as a child, sought to have the cancellation decision revoked. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision.

The Tribunal was tasked with considering various factors outlined in Direction No 90, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, family violence, the best interests of minor children, community expectations, the extent of impediments to removal, and the applicant's links to the Australian community. The applicant argued that his long-standing ties to Australia, his three minor children and a minor granddaughter, and the emotional hardship of removal to the United Kingdom, where he had no significant connections, constituted another reason for revocation. The Tribunal also considered whether uncontested restraining orders were indicative of family violence and the extent of impediments to resettlement in the United Kingdom, noting the applicant's age and his separation from his Australian family.

The Tribunal found that while community expectations weighed moderately against revocation, the extent of impediments to removal to the United Kingdom was a significant consideration. The applicant had lived in Australia for approximately 48 years, had no social or emotional support network in the UK, and would be separated from his children, grandchild, and elderly parents. Balancing these factors, the Tribunal was satisfied that there was another reason why the cancellation decision should be revoked. Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the cancellation.