Callaghan and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a delegate’s decision not to revoke a mandatory visa cancellation. The applicant, who was born in New Zealand, had resided in Australia since 1996. The Minister for Immigration and Border Protection had cancelled the applicant's visa under section 501 of the *Migration Act 1958* (Cth) due to the applicant failing the character test, specifically due to a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to determine whether the delegate's decision to affirm the visa cancellation was correct or preferable.

The Tribunal was tasked with considering Ministerial Direction No. 65, which outlines the considerations for refusing or cancelling visas and revoking mandatory cancellations under section 501CA of the Act. Key issues included the seriousness and nature of the applicant's conduct, the risk of reoffending, the expectations of the Australian community, and the best interests of any minor children. The applicant's criminal history, which commenced in New Zealand prior to his arrival in Australia and continued thereafter, was a central focus.

The Tribunal noted that the applicant's offences, which included drink-driving, assault, wilful damage, and dishonesty offences, appeared to increase in severity and were numerous. It was acknowledged that many of these offences were committed while the applicant was experiencing problems with alcohol and drugs, which he claimed to have ceased for over a decade and to have used to fund his drug habit. The Tribunal also considered the applicant's more recent conduct, including threatening behaviour towards a doctor, and noted that it was bound by the facts to which the applicant had pleaded guilty in court, even if his evidence to the Tribunal differed. Despite the applicant's stated desire for rehabilitation, his plans for re-establishing himself in business, and his wish to reconnect with his daughter, the Tribunal found that the evidence pointed to significant ongoing problems with drugs and likely alcohol, and a high risk of reoffending.

Ultimately, the Tribunal affirmed the delegate's decision to refuse to revoke the visa cancellation. The Tribunal expressed the view that the applicant had an opportunity to make a fresh start in New Zealand, a country with cultural similarities to Australia, and that reconnecting with his family there might be beneficial. The Tribunal also suggested that if the applicant were to address his issues, he could still develop a relationship with his daughter.