Euese and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant, a New Zealand citizen who had resided in Australia since childhood, failed the character test due to having a substantial criminal record, having been sentenced to 12 months imprisonment or more. The applicant sought revocation of the visa cancellation under section 501CA(4)(b) of the Migration Act 1958 (Cth), arguing there was "another reason" why the cancellation should be revoked. The Administrative Appeals Tribunal (AAT) considered the matter under Direction No. 99.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation, having regard to the considerations outlined in Direction No. 99. This involved weighing various factors, including the applicant's criminal history, the seriousness of his offending, the protection of the Australian community, the strength of his ties to Australia, the best interests of any minor children, and the extent of impediments if removed. A specific focus was placed on the consideration of family violence as outlined in paragraph 8.2 of Direction 99.

The Tribunal reasoned that significant weight must be given to the primary consideration against revocation, particularly concerning family violence. While acknowledging the applicant's candid admission of responsibility and understanding of the impact of striking his partner, the Tribunal noted the limited evidence of other family violence incidents and the absence of formal prosecution or intervention orders for that specific event. The Tribunal also considered other factors under Direction 99, including the legal consequences of the decision and the extent of impediments if removed, but found that these did not outweigh the serious considerations against revocation.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal concluded that, despite the applicant's ties to Australia and efforts at rehabilitation, the seriousness of his offending, including the incident of intentionally causing injury and other criminal conduct, coupled with the primary consideration against revocation due to family violence, meant that there was no other reason to revoke the cancellation.