Carter and Minister for Home Affairs (Migration)

The applicant sought review of a delegate's decision to refuse to revoke the mandatory cancellation of his visa. The delegate had found that the applicant did not pass the character test due to his substantial criminal record, posing an unacceptable risk of harm to the Australian community. The delegate considered whether there was another reason to revoke the cancellation, specifically the best interests of the applicant's child, but ultimately determined that the protection of the Australian community outweighed this and other countervailing considerations. The applicant had entered Australia as a child in 1978 and had resided there since, attending school and holding various employment. He had an extensive criminal record, leading to the mandatory visa cancellation on 16 June 2017.

The legal issues before the court were whether the delegate erred in refusing to revoke the mandatory visa cancellation. This involved assessing whether the protection of the Australian community from criminal activity outweighed the best interests of the applicant's minor children and other considerations, such as the strength and duration of his ties to Australia, the impact on his family members, and the extent of impediments to his removal. The court was required to apply Direction 65, which provides guidance on exercising powers under section 501 of the Migration Act 1958 (Cth), emphasizing the protection of the Australian community and the privilege of remaining in Australia for non-citizens.

The court reasoned that despite the applicant's lengthy residence in Australia, his attendance at school, and his family and social networks, these factors did not outweigh the primary consideration of protecting the Australian community. The applicant's participation in rehabilitation programs and detoxification had not prevented him from continuing a law-breaking lifestyle, as evidenced by drug use detected during incarceration. The court concluded that the applicant continued to represent an unacceptable risk of harm to the Australian community. Therefore, the factors supporting revocation, including his family ties and the best interests of his child, did not cumulatively outweigh the factors weighing against the exercise of discretion to revoke the visa cancellation.

Accordingly, the court found that the delegate's decision to refuse to revoke the mandatory cancellation of the applicant's visa was the correct and preferable decision.