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

This matter concerned an application by a 74-year-old New Zealand citizen to review the decision of a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs to cancel his visa. The applicant had resided in Australia since 1992, with intermittent returns to New Zealand, and had failed to disclose criminal convictions upon entry. The dispute centred on whether the delegate's decision to cancel the visa, based on the applicant failing the character test, was correct. The case was heard by Member L M Gallagher of the Administrative Appeals Tribunal.

The Tribunal was required to determine the weight to be given to various considerations under Direction No. 110 when assessing the applicant's character and the risk posed to the Australian community. Specifically, the court had to consider the nature and seriousness of the applicant's criminal offending, the risk of future offending, the strength of the applicant's ties to Australia, the best interests of his minor grandchildren, community expectations, and the impediments to his removal from Australia. The Tribunal also had to consider the specific consideration of family violence perpetrated by the applicant.

The Tribunal reasoned that the protection of the Australian community was the paramount consideration. It found that the applicant's extensive criminal history, which included violent crimes, crimes against government officials, drug offences, and numerous driving offences, presented a significant risk of future offending. The Tribunal noted that the applicant had not demonstrated rehabilitation and that the scourge of family violence was a serious concern, making any risk of future family violence unacceptable. Despite the applicant's significant family ties in Australia, including a wife, children, grandchildren, and great-grandchildren, the Tribunal concluded that these ties did not outweigh the risk to the community. The Tribunal affirmed the delegate's decision to cancel the visa.