Cruckshank and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application by Mr Cruckshank to review a decision by the Minister for Immigration, Citizenship, and Multicultural Affairs to cancel his visa. The decision was reviewed by Senior Member Dr N A Manetta of the Administrative Appeals Tribunal. The core of the dispute revolved around whether Mr Cruckshank met the character test under the *Migration Act 1958* and, if so, whether the discretion to cancel his visa should be exercised in his favour.

The Tribunal was required to determine two primary legal issues. Firstly, whether Mr Cruckshank failed the character test due to his criminal conduct, specifically a serious offence involving family violence and multiple breaches of an apprehended domestic violence order. Secondly, if he did fail the character test, the Tribunal had to consider whether, in the exercise of its discretion, it was preferable to cancel his visa, taking into account all relevant factors including Direction 99.

In reaching its decision, the Tribunal weighed the seriousness of Mr Cruckshank's offending, including a conviction for family violence and repeated breaches of apprehended domestic violence orders, against factors favouring him. These mitigating factors included his lengthy residence in Australia since 2003, the significant impact his deportation would have on his two children, and the potential for him to receive necessary medical treatment in Australia. The Tribunal also considered evidence from a victim who wished for Mr Cruckshank to remain in Australia. Despite acknowledging the substantial interests of his children and the victim's wishes, the Tribunal found that the risk of reoffending was real and that the preferable decision on balance was to exercise the discretion to cancel the visa.

The Tribunal affirmed the decision under review, meaning Mr Cruckshank's visa cancellation was upheld.