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

This matter concerned an application by the Applicant, a 47-year-old New Zealand citizen who arrived in Australia as an infant, for the revocation of a mandatory visa cancellation. The Applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to his substantial criminal record, including 54 convictions for dishonesty offences, for which he received a sentence of five and a half years imprisonment. A delegate of the Minister subsequently decided not to revoke this cancellation. The Applicant sought review of this decision before the Tribunal. The Federal Court of Australia had previously found that the Tribunal had committed jurisdictional error by failing to consider the views of the Applicant's daughter regarding the potential impact of his removal, and remitted the matter for redetermination.

The primary legal issues before the Tribunal were whether the Applicant passed the character test as defined by s 501(6) of the Migration Act, and if not, whether there was another reason to revoke the cancellation decision under s 501CA(4). In determining these issues, the Tribunal was required to consider the factors outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the offending, the risk of future offending, the Applicant's ties to Australia, the best interests of his children, community expectations, and the impediments to his removal.

The Tribunal considered the evidence presented, including the Applicant's extensive criminal history and his long-standing ties to Australia, having resided there since infancy. It also had regard to the submissions and evidence from the previous hearing, as well as the Applicant's personal circumstances and the impact of his potential removal on his family, including his daughter. Applying the principles in Direction No 99, the Tribunal weighed the seriousness of the Applicant's offending and the risk he posed against his ties to Australia and other personal considerations.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the visa cancellation. The Tribunal concluded that the correct and preferable decision was to affirm the Non-Revocation Decision, meaning the Applicant's visa remained cancelled.