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

The Administrative Appeals Tribunal (AAT) considered the case of ETWK and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the applicant's visa on character grounds under section 501(3A) of the Migration Act 1958 (Cth), following convictions for theft, damage to property, and assault. The applicant sought to have this cancellation revoked.

The primary legal issue before the Tribunal was whether the discretion to revoke the mandatory cancellation of the applicant's visa should be exercised. This required the Tribunal to consider the factors outlined in Direction No. 79, including the protection and expectations of the Australian community, the applicant's personal circumstances, and the best interests of minor children in Australia. The Tribunal also had to assess the risk of reoffending, the applicant's rehabilitation efforts, and the potential impediments to his assimilation if deported.

The Tribunal reasoned that while the community's expectations and a moderate risk of reoffending favoured affirming the cancellation, these considerations were outweighed by other factors. Crucially, the Tribunal found that the deportation of the applicant would adversely affect his entire family, including foster children who relied heavily on his mother's support. The applicant had strong ties to Australia, having lived there for twenty years, and his family expressed strong faith in his rehabilitation and offered significant support. Furthermore, the Tribunal noted that the applicant would face impediments to assimilation in New Zealand, with limited family assistance available there, and his mother would face personal risk if she accompanied him. The Tribunal concluded that the damage to the infant children and the undesirable division of a close family unit were cogent humanitarian reasons not to deport the applicant.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision to revoke the cancellation.