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

This matter concerned an application by CYNQ for the revocation of the mandatory cancellation of his Class XB Subclass 202 protection visa. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs opposed the application. The Administrative Appeals Tribunal was required to determine whether there was another reason why the mandatory cancellation of CYNQ's visa should be revoked, having regard to Ministerial Direction No 79.

The primary legal issues before the Tribunal were whether CYNQ passed the character test, and if not, whether there was another reason to revoke the visa cancellation. The Tribunal was required to consider the provisions of section 501 of the Migration Act 1958 (Cth) concerning the character test, including the definition of a substantial criminal record. Crucially, the Tribunal had to apply Ministerial Direction No 79, which sets out the framework for considering revocation of visa cancellations, including the weight to be given to various factors such as the protection of the Australian community, the best interests of children, and harm or hardship to the non-citizen and their family.

The Tribunal found that CYNQ did not pass the character test due to a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. In considering whether there was another reason to revoke the cancellation, the Tribunal applied Ministerial Direction No 79. It assessed the nature and seriousness of CYNQ's conduct, concluding that his offences were at the lower end of the spectrum and did not involve violence or sexual crimes. While acknowledging a moderate risk of property deprivation, the Tribunal gave significant weight to the best interests of CYNQ's daughter, the harm or hardship to CYNQ and his family if removed, the strength of his ties to Australia, and impediments to his removal.

Ultimately, the Tribunal determined that the primary considerations of protecting the Australian community and community expectations were outweighed by the best interests of minor children and other relevant considerations. The Tribunal found that the moderate risk of property offending and community expectations were greatly outweighed by the best interests of CYNQ's daughter and the significant hardship that would result from his removal. Accordingly, the Tribunal set aside the decision refusing to revoke the cancellation and substituted a decision revoking the mandatory cancellation of CYNQ's visa.