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

The Administrative Appeals Tribunal considered the case of Diehl and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the discretionary cancellation of the Applicant's visa under section 501(2) of the *Migration Act 1958* (Cth) due to failure to pass the character test. The Applicant, a Canadian, New Zealand, and English citizen who had resided in Australia for 34 years, sought to have the decision to cancel his visa set aside.

The Tribunal was required to determine whether there was "another reason" not to exercise the discretion to cancel the Applicant's visa, having regard to Ministerial Direction No. 90. This involved assessing various considerations, including the nature and seriousness of the Applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the strength and duration of the Applicant's ties to Australia, and the impediments to his removal. The Tribunal also considered the impact on victims and international non-refoulement obligations.

In its reasoning, the Tribunal acknowledged the seriousness of some of the Applicant's past offending, which included violent offences and breaches of apprehended violence orders, often linked to excessive alcohol consumption. However, it noted a significant period of 11 years without convictions between 1999 and 2011, and that more recent offending had not involved very serious crimes. The Tribunal gave weight to the Applicant's troubled upbringing and alcoholism as contributing factors, as identified by a consulting psychologist, who believed the risk of reoffending would decrease with counselling. The Tribunal also considered the Applicant's stable marriage since 2017, his wife's reliance on him, his successful blacksmith business, his remorse, and his awareness of the consequences of further offending.

The Tribunal concluded that, on balance, there was another reason not to exercise the discretion to cancel the Applicant's visa. It found that the Applicant had demonstrated he could be a worthwhile citizen, was unlikely to pose a serious risk to the public, and would suffer significant detriment if removed from Australia, given his long residence and family ties. Consequently, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel it.