Blyde and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Blyde against a decision by the Minister for Immigration and Border Protection to cancel his visa. The cancellation was based on Mr Blyde failing to pass the character test due to having a substantial criminal record, specifically a term of imprisonment of 12 months or more. The Minister's delegate applied Ministerial Direction No 65 in making the cancellation decision.

The Tribunal was required to determine the appropriate application of Ministerial Direction No 65, particularly concerning the protection of the Australian community, community expectations, the risk of future offending and harm, and the consideration of other relevant factors. This involved interpreting the principles within the Direction regarding the tolerance of criminal conduct by visa holders, especially in light of their community presence and the nature of their offences.

The Tribunal reasoned that Ministerial Direction No 65 emphasises the privilege of holding a visa and the expectation that visa holders will be law-abiding. While the Direction contemplates some tolerance for criminal conduct, this tolerance is low for individuals with short periods of presence in Australia and higher for those who have lived in Australia for most of their lives. The assessment of future harm is critical, and the Tribunal must weigh the risk of such harm against other considerations, including the individual's contributions to the community and the impact of cancellation on family members. The Tribunal noted that while the Direction does not explicitly state "low tolerance," this sentiment is implicit in the mandatory cancellation provisions for those with substantial criminal records and in the expression of community expectations. The Tribunal found that Mr Blyde's work experience demonstrated adaptability, and there was no indication that returning to New Zealand would present greater rehabilitative difficulties than remaining in Australia, especially given his family background, qualifications, work experience, and eligibility for social welfare support in New Zealand.

The Tribunal affirmed the decision under review.