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

This matter concerned an appeal by Mr Butko against a decision to cancel his visa, brought before the Administrative Appeals Tribunal. The dispute centred on whether the cancellation of Mr Butko's visa should be revoked, considering his personal circumstances, history, and criminal convictions.

The Tribunal was required to determine whether there was another reason justifying the revocation of the visa cancellation. This involved conducting a de novo hearing on the merits, meaning the Tribunal could affirm or set aside the delegate's decision based on the evidence before it, irrespective of any errors made by the delegate. The Tribunal was guided by Direction 90, which outlines principles for decision-makers exercising discretion under the Act, including considerations of a non-citizen's privilege to remain in Australia, the expectation that they be law-abiding, and the community's expectation that visas be cancelled for serious misconduct.

The Tribunal reasoned that while Mr Butko had a history of offending, this needed to be weighed against significant countervailing considerations. These included his refugee background, the hardship he endured in war-torn Yugoslavia, his long period of residence in Australia since 2000, his completion of Year 12, his work history, his current partnership, and his four children, two of whom were stranded overseas. The Tribunal applied the principles of Direction 90, noting that a higher tolerance for misconduct is extended to those who have lived in Australia for most of their life or from a very young age.

Ultimately, the Tribunal decided to set aside the decision under review and substitute a decision that the cancellation of Mr Butko's visa be revoked.