Bartlett v The Minister for Immigration and Boarder Protection (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by a New Zealand citizen against the mandatory cancellation of his visa and the subsequent refusal by the Minister's delegate to revoke that cancellation. The applicant had resided in Australia since 1996 and held a Special Category (Temporary) visa. His visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) on the grounds that he did not pass the character test due to a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more.

The Tribunal was required to determine whether to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation. In doing so, the Tribunal had to consider the principles outlined in Direction No. 65, particularly the primary consideration of protecting the Australian community from criminal or other serious conduct. This involved assessing the nature and seriousness of the applicant's past conduct, the risk to the community should he re-offend, and the cumulative effect of his repeated offending.

The Tribunal found that the applicant's criminal history was extensive and serious, encompassing a range of offences including fraud, forgery, assault of a police officer, and drug offences, resulting in multiple custodial sentences totalling over 52 months. The Tribunal noted that the applicant had continued to offend despite receiving warnings and concessions from sentencing courts. Applying the principles of Direction No. 65, the Tribunal concluded that the primary consideration of protecting the Australian community weighed heavily in favour of not revoking the visa cancellation. Other considerations did not sufficiently outweigh this primary concern.

Consequently, the Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was upheld.