Engi and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Special Category Visa (subclass 444). The applicant, who arrived in Australia as a child and had resided there since 1995, had his visa automatically cancelled following a criminal conviction and a sentence of 12 months imprisonment. The cancellation was based on the applicant failing to pass the character test due to a substantial criminal record. The applicant sought the exercise of discretion to revoke this mandatory cancellation. The decision was made by M J McGrowdie SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the delegate had erred in exercising the discretion under section 501(3A) of the Migration Act 1952 not to revoke the mandatory visa cancellation. This required the Tribunal to consider the framework set out in Ministerial Direction No. 65, which outlines the principles to be applied when exercising this discretion. Specifically, the Tribunal had to assess the primary considerations of protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, as well as other relevant considerations such as the strength, nature, and duration of the applicant's ties to Australia and the impediments to his removal.

In reaching its decision, the Tribunal applied the principles of Ministerial Direction No. 65, which mandates a balancing of various factors. The Tribunal considered the nature and seriousness of the applicant's conduct, noting that while his offences, including larceny and assault leading to imprisonment, and a domestic violence offence, were serious, they were not at the upper end of the spectrum. The Tribunal found that the assault was not pre-meditated and the domestic violence incident, while not condoned, did not result in actual physical harm and occurred within a tumultuous relationship. Regarding the risk to the Australian community, the Tribunal acknowledged that continued offending would pose a risk, but found a real prospect of rehabilitation given the applicant's remorse and appreciation of the consequences of his alcohol and drug use, particularly in light of his family responsibilities. The Tribunal also considered the applicant's long-standing ties to Australia, having lived there since childhood.

The Tribunal concluded that, on balance, it was appropriate to exercise the discretion against mandatory cancellation. Accordingly, the Tribunal set aside the delegate's decision and substituted it with a decision revoking the mandatory cancellation of the applicant's visa, allowing him to remain in Australia.