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

This matter concerned the review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant, a citizen of New Zealand, had his visa mandatorily cancelled on character grounds due to a substantial criminal record, including convictions for supplying a commercial quantity of drugs. The Applicant sought review of the non-revocation decision before the Administrative Appeals Tribunal (AAT).

The Tribunal was required to determine whether the non-revocation decision was the correct and preferable decision. This involved assessing the Applicant's character, the seriousness of his criminal conduct, and whether there were compelling reasons to revoke the visa cancellation. A key issue was whether the Tribunal could proceed with the hearing in the Applicant's absence, given his repeated failure to attend scheduled case management hearings and the substantive hearing, despite having reasonable notice. The Tribunal also considered Ministerial Direction No. 90, which guides decision-making in such cases.

The Tribunal reasoned that the Applicant's criminal history, spanning from a young age into adulthood and culminating in a significant drug supply conviction and imprisonment, demonstrated a persistent disregard for Australian laws and a substantial risk to the community. Despite some evidence of polite behaviour in custodial settings, the overall pattern of misconduct, including further offences while in detention, weighed heavily against revocation. The Tribunal noted that the Applicant had voluntarily returned to New Zealand after proceedings commenced and had failed to engage with the Tribunal process, including declining to attend multiple hearings without providing reasons. Applying the principles of Ministerial Direction No. 90, particularly concerning the protection of the Australian community and the seriousness of the conduct, the Tribunal found that there were no compelling reasons to revoke the cancellation decision.

The Tribunal affirmed the reviewable decision not to revoke the mandatory cancellation of the Applicant's visa. This decision was made after considering the extensive documentary evidence, including previous statements and oral testimony from the Applicant, and in the absence of the Applicant who had failed to attend the substantive hearing despite reasonable notice.