Edwards-Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal by the Applicant, a 19-year-old New Zealand citizen, against the mandatory cancellation of his visa. The Applicant had resided in Australia since May 2018 and his visa was cancelled on 5 March 2020, pursuant to s 501(3A) of the Migration Act 1958 (Cth), following his conviction for multiple offences including home burglary and aggravated home burglary. He had been sentenced to an effective term of four years and six months imprisonment. The Respondent was the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the mandatory visa cancellation.

The Tribunal was required to consider whether there was "another reason" why the cancellation decision should be revoked, as contemplated by s 501CA(4) of the Migration Act. In this assessment, the Tribunal was guided by Direction 79, which mandates consideration of the protection of the Australian community from harm, the nature and seriousness of the Applicant's conduct, and the risk to the community should he re-offend. The Tribunal was also to have regard to the best interests of the child, the strength, nature, and duration of the Applicant's ties to Australia, and the extent of impediments to his removal.

The Tribunal found that the Applicant's offending, while serious and involving a significant number of burglaries and substantial value of stolen goods, occurred over a limited period when he was 17 years old. The Tribunal noted that the Applicant had expressed remorse and had not re-offended since his incarceration. Weighing the factors under Direction 79, the Tribunal concluded that while the protection of the Australian community was a paramount consideration, the Applicant's youth at the time of the offending, his limited ties to New Zealand, and the fact that he had been in Australia since he was 17, meant that there was another reason to revoke the cancellation decision. Consequently, the Tribunal set aside the Reviewable Decision and substituted it with a decision that the cancellation of the Applicant's visa be revoked.