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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the Applicant's Special Category (Class TY) (Subclass 444) visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) on the basis that the Applicant did not pass the character test due to having a substantial criminal record. The case was before the Administrative Appeals Tribunal on remittal from the Federal Court.

The Tribunal was required to determine whether the Applicant passed the character test, considering Ministerial Direction No. 90. This involved assessing various primary considerations, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the Applicant's conduct, the seriousness of offending and future risk, the best interests of minor children in Australia, expectations of the Australian community, the extent of impediments if removed, impact on victims, and links to the Australian community. The Tribunal also had to consider other considerations, such as the strength, nature, and duration of the Applicant's ties to Australia.

In its reasoning, the Tribunal considered evidence regarding the Applicant's childhood development, including diagnoses of ADHD and borderline mild intellectual disability, and his subsequent difficulties in educational settings. Psychological reports indicated the Applicant had a history of difficulty managing anger and behavioural impulses, was susceptible to being easily led, and had low cognitive functioning. While the Applicant expressed remorse and an intention to desist from crime, he also presented with limited insight into the triggers for his offences. The Tribunal weighed the primary considerations, noting the Applicant's significant ties to Australia, having arrived as a child and having no ties to New Zealand.

Ultimately, the Tribunal set aside the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. In substitution, the Tribunal revoked the cancellation of the Applicant's visa under subsection 501CA(4) of the Migration Act 1958 (Cth).