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

This case concerned the mandatory cancellation of the applicant's Class TY, Subclass 444 Special Category (Temporary) visa, following his failure to pass the character test. The applicant, a citizen of New Zealand, sought to have the cancellation revoked. The review was conducted by Emeritus Professor P A Fairall, Senior Member.

The primary legal issues before the Tribunal were whether there was another reason to revoke the visa cancellation and how to apply Direction No. 79 in weighing the various considerations. This involved assessing the protection of the Australian community, the best interests of the applicant's minor children, the expectations of the Australian community, the applicant's denial of guilt, his remorse, the strength and duration of his ties to Australia, and the circumstances of his elderly, frail parents.

The Tribunal considered the applicant's involvement in serious criminal offending, including aggravated armed robbery, and found that he was involved in all five offences considered by the District Court in 2013, despite his denials regarding two of those offences. The Tribunal noted that a denial of wrongdoing that fails to persuade a decision-maker should not of itself be treated as evidence of bad character or a lack of remorse. In assessing the protection of the Australian community, the Tribunal concluded that this consideration weighed firmly but not heavily against revocation. Regarding the best interests of the applicant's minor children, the Tribunal acknowledged the sustained and nurtured relationship, evidenced by regular prison visits and affidavits from the children expressing their desire for the applicant's return.

The Tribunal ultimately set aside the decision under review.