Davis and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal, constituted by T. Tavoularis SM, considered the case of an applicant, a New Zealand citizen, whose visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to failing the character test while serving a term of imprisonment. The applicant sought to have this mandatory cancellation revoked.

The central legal issue before the Tribunal was whether the discretion afforded by section 501CA(4) of the Act should be exercised to revoke the mandatory cancellation of the applicant's visa. This required the Tribunal to assess various considerations, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the applicant's conduct to date, and the risk to the community should further offences be committed.

The Tribunal reasoned that the applicant's criminal history was extensive and serious, demonstrating a pattern of offending that continued despite warnings about his visa status. The underlying theme of illicit substance abuse was identified as a significant factor contributing to his conduct, which often involved interference with the personal and property rights of others and a severe lack of judgment. The Tribunal noted that sentencing courts had imposed custodial terms for his offences, indicating their gravity. Applying the considerations outlined in the Direction, the Tribunal found that primary considerations, particularly the protection of the Australian community and the seriousness of the applicant's conduct, weighed heavily in favour of non-revocation. While acknowledging some weight for other considerations, they did not outweigh those favouring non-revocation.

Consequently, the Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.