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

This matter concerned an application by CSYS (the applicant) to set aside a mandatory cancellation of his visa, which had been imposed by the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute centred on the applicant's criminal conduct, specifically acts of family violence, and whether these warranted the cancellation of his visa. The case was heard by Emeritus Professor P A Fairall, Senior Member, in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant's visa should be reinstated, considering the mandatory cancellation under subsection 501CA(4) of the *Migration Act 1958*. This required the Tribunal to assess various considerations outlined in Direction No. 90, including the protection of the Australian community, the nature and seriousness of the applicant's conduct, and the best interests of his minor children in Australia. The Tribunal also had to weigh the applicant's links to Australia against any impediments to his relocation.

The Tribunal reasoned that the applicant's conduct, which included domestic assault, contraventions of apprehended violence orders, and the serious offence of intentionally choking his wife, constituted an egregious form of family violence. This behaviour weighed heavily against the revocation of the visa cancellation, as it demonstrated a disregard for the privilege of remaining in Australia. While acknowledging the applicant's meaningful bonding with his children and the potential difficulties in obtaining enforceable co-parenting orders if he were removed from Australia, the Tribunal found that these factors were outweighed by the severity of his criminal conduct and the need to protect the Australian community. The Tribunal ultimately set aside the decision to cancel the applicant's visa and substituted a decision to refuse to grant a visa.