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

This matter concerned an application by Mr. Clegg, a New Zealand citizen, to revoke the mandatory cancellation of his Subclass 444 Special Category (Temporary) visa. The visa cancellation was based on Mr. Clegg failing the character test. The Administrative Appeals Tribunal was required to consider whether there was "another reason" to revoke this cancellation, applying the framework set out in Direction No. 79.

The Tribunal was tasked with determining the weight to be given to various "primary considerations" and "other considerations" as outlined in Direction No. 79. These included the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community. Additionally, the Tribunal had to consider "other considerations" such as the strength, nature, and duration of ties to Australia, the impact on victims, and the extent of impediments to removal. The Tribunal also had to consider Australia's international obligations under Articles 12(4) and 17(1) of the International Covenant on Civil and Political Rights.

In its reasoning, the Tribunal found that while the protection of the Australian community weighed against revocation, its significance was not determinative, particularly given the low likelihood of Mr. Clegg reoffending. Crucially, the Tribunal gave significant weight to the best interests of Mr. Clegg's two minor children, aged eight and seven. It found that Mr. Clegg had a strong, loving, and caring relationship with both children, had played a significant role in their daily lives, schooling, and leisure, and was likely to continue to do so until they turned 18. The Tribunal concluded that Mr. Clegg's incarceration had not diminished the strength or duration of these relationships, especially given the children's frequent visits.

The Tribunal ultimately determined that the best interests of the minor children, when considered alongside other factors, constituted another reason to revoke the mandatory cancellation of Mr. Clegg's visa. The decision to cancel the visa was set aside.