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

This matter concerned an application for review by DCBX, a New Zealand citizen, of the mandatory cancellation of her visa. The applicant arrived in Australia at the age of seven and had resided there for most of her life. Her visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to her substantial criminal record, having been sentenced to more than 12 months imprisonment. The applicant sought revocation of this cancellation. The decision was heard by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant passed the character test under section 501(6) of the Act, and if not, whether there was another reason to revoke the mandatory cancellation under section 501CA(4)(b)(ii). The Tribunal found that the applicant did not pass the character test due to her substantial criminal record, specifically a sentence of imprisonment exceeding 12 months. The central issue therefore became whether there was "another reason" to revoke the cancellation, guided by Minister's Direction No 90.

In its reasoning, the Tribunal applied Direction No 90, which outlines primary considerations including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal found the applicant's offending, which included extremely violent assaults, to be very serious, weighing heavily against revocation. While acknowledging the applicant's difficult background, including trauma, mental health conditions, and substance abuse, and her remorse and efforts at rehabilitation, the Tribunal concluded there remained a very real risk of reoffending. The Tribunal also considered the adverse impact on the applicant's younger siblings and broader family in Australia, and the challenges she would face upon removal to New Zealand, which weighed in favour of revocation. However, the Tribunal ultimately determined that the considerations of protecting the Australian community and the expectations of the Australian community weighed very significantly against revocation, outweighing the countervailing factors.

The Tribunal affirmed the decision to mandatorily cancel the applicant's visa and therefore did not revoke the cancellation.