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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, Ms Davis, a 57-year-old New Zealand citizen who arrived in Australia at age 24, had her visa cancelled due to having a substantial criminal record, specifically an offence of grievous bodily harm. The review was heard by M Evans-Bonner SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine two issues: first, whether the applicant passed the character test as defined by section 501(6) of the *Migration Act 1958* (Cth); and second, if she did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked under section 501CA(4) of the Act. In considering these issues, the Tribunal was directed to have regard to Direction No 99, which outlines primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength, nature and duration of ties to Australia, the best interests of minor children, community expectations, and the legal consequences of the decision, including international non-refoulement obligations.

The Tribunal considered the applicant's ties to Australia, noting that while she had resided in Australia for a significant period, her immediate family members who were Australian citizens or residents had returned to New Zealand. The Tribunal found that the applicant's connections to her remaining family in Australia were not close, and therefore, the impact on them if she were removed would be minimal. The Tribunal also noted that the applicant did not have a substantial criminal record as defined by section 501(7)(c) of the Act, as she had not been sentenced to a term of imprisonment of 12 months or more. Consequently, the applicant passed the character test.

As the applicant passed the character test, the Tribunal was satisfied that there was another reason why the cancellation decision should be revoked. The Tribunal revoked the original decision to cancel the applicant's visa.