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

This case concerned an application to the Administrative Appeals Tribunal (AAT) by Mr Berryman, a New Zealand citizen who had resided in Australia since childhood, seeking to revoke the mandatory cancellation of his visa. The cancellation had been effected under section 501(3A) of the *Migration Act 1958* (Cth) due to Mr Berryman failing to pass the character test, stemming from an extensive adult criminal record, including convictions for driving offences resulting in a sentence of imprisonment exceeding 12 months. The central dispute was whether there was "another reason" under section 501CA(4)(b)(ii) of the Act why the visa cancellation decision should be revoked.

The AAT was required to determine whether the discretion to revoke the mandatory visa cancellation should be exercised. This involved assessing whether Mr Berryman had established "another reason" that warranted revocation, considering the factors outlined in Direction 79, particularly the primary considerations of protecting the Australian community from criminal or serious conduct and the expectations of the Australian community. The Tribunal had to weigh these against other considerations favouring revocation, such as the strength of the applicant's ties to Australia, the best interests of any children, and impediments to removal.

In its reasoning, the Tribunal applied Direction 79, which mandates that decision-makers consider the protection of the Australian community as a paramount concern. It examined the nature and seriousness of Mr Berryman's conduct, noting his extensive criminal history, and assessed the risk to the community should he re-offend. While acknowledging Mr Berryman's long ties to Australia, his family in Australia, and the best interests of his daughter, the Tribunal found that these considerations were outweighed by the primary considerations relating to community protection and the expectations of the Australian community. The Tribunal concluded that the cumulative effect of Mr Berryman's offending, despite his claims of rehabilitation and the Parole Board's assessment of low risk, meant that the mandatory cancellation should not be revoked.

Consequently, the AAT affirmed the delegate's decision not to revoke the mandatory cancellation of Mr Berryman's visa.