Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the Federal Court of Australia, the applicant, a citizen of New Zealand, sought an extension of time to bring a judicial review application of the Administrative Appeals Tribunal’s (AAT) decision that affirmed the Minister’s decision not to revoke the mandatory cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth). The applicant’s visa was cancelled because the delegate was satisfied that he did not pass the character test due to his criminal record and because he was serving a term of imprisonment at the time of the decision. The applicant made representations within the relevant period and in the manner specified, but the delegate was not satisfied that the visa cancellation should be revoked. The AAT affirmed the delegate’s decision, considering factors such as the protection of the Australian community and the expectations of the Australian community, which weighed heavily against revocation. The applicant argued that the AAT proceeded on an incorrect understanding of Dr Yoxall’s evidence, particularly regarding the applicant’s risk of recidivism and the effectiveness of a residential rehabilitation program. The court considered the applicant’s ties to Australia and the potential impediments he would face upon returning to New Zealand, but ultimately concluded that these factors were outweighed by the primary considerations against revocation. The court found that the applicant’s proposed application had sufficient merit to warrant an extension of time to allow for a full argument. Consequently, the court allowed the application for an extension of time, issued a referral certificate for legal assistance, and extended the time to file an originating application for judicial review until 26 February 2021. Costs were reserved.