De Veyra and Minister for Immigration, Citizenship, Migrant Services 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, a 31-year-old man who arrived in Australia at age 13, had been subject to a mandatory visa cancellation due to a substantial criminal record, including an assault occasioning grievous bodily harm. The Administrative Appeals Tribunal was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision, considering the primary and other considerations outlined in Direction No 79.

The Tribunal was tasked with assessing various factors under Direction No 79, including the protection of the Australian community, the nature and seriousness of the offending conduct, the risk posed to the community, the best interests of any minor children, community expectations, and the strength, nature, and duration of the applicant's ties to Australia. The applicant argued that his long residence in Australia since childhood, his completion of secondary education, and his limited ties to the Philippines should weigh in his favour. The Tribunal also considered the impact of the COVID-19 pandemic on the applicant's circumstances and any potential non-refoulement obligations.

In its reasoning, the Tribunal noted that Australia's non-refoulement obligations were not engaged in this case. It applied principles from Direction No 79 regarding the strength of ties to Australia, acknowledging that a higher level of tolerance for offending conduct may be afforded to non-citizens who have lived in Australia from a very young age or for most of their lives. The Tribunal found that the applicant, having resided in Australia for approximately 18 years since the age of 13 and having completed Year 12, had lived in Australia since his teenage years. While his first offence, driving under the influence, occurred in early adulthood at age 19, it was not considered to be "soon after arriving in Australia." The Tribunal also considered the applicant's single visit to the Philippines as an adult and his ability to see his mother there.