Durham and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) reviewed a delegate's decision to refuse to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant, a 61-year-old New Zealand citizen who had resided in Australia since 1982, had his visa mandatorily cancelled on 22 June 2017, pursuant to section 501(3A) of the Migration Act 1958 (Cth), due to having a substantial criminal record, including a sentence of more than 12 months imprisonment. The delegate subsequently refused to revoke this cancellation on 4 January 2019.

The primary legal issue before the Tribunal was whether the discretion under section 501CA(4) of the Act to revoke the mandatory visa cancellation should be exercised. This required the Tribunal to consider whether the applicant passed the character test or if there was another reason why the cancellation should be revoked, with particular regard to the considerations outlined in Direction 79. The Tribunal was tasked with assessing the applicant's extensive criminal history, including offences in both Australia and New Zealand, and evaluating the risk to the Australian community.

Senior Member Theodore Tavoularis considered the evidence, including a report and oral evidence from a forensic psychologist, Dr. Gavan Palk. The Tribunal noted the applicant's extensive criminal history, which included offences against children for which he was incarcerated in 1994. While submissions were made on behalf of the applicant that his offending was primarily driving and drug-related, and that the child-related offences were not of a sexual nature and occurred many years ago, the Tribunal found that the applicant had minimized his conduct and had not been entirely truthful regarding the extent and nature of these offences. The Tribunal placed significant weight on the primary consideration of protecting the Australian community, noting that remaining in Australia is a privilege that non-citizens must not abuse by breaking the law.

Ultimately, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review was affirmed.