FCFY and Minister for Home Affairs (Migration)

This matter concerned an appeal by the applicant, FCFY, against the Minister for Home Affairs' decision to refuse to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa. The cancellation was based on the applicant failing to pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to consider the relevant Ministerial Direction, specifically Ministerial Direction No. 65, which outlines the factors to be weighed when deciding whether to revoke such a cancellation.

The Tribunal was tasked with determining whether, in light of Ministerial Direction No. 65, the decision to cancel the applicant's visa should be revoked. This involved assessing several primary considerations, including the protection of the Australian community from criminal and other serious conduct, the best interests of minor children, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the strength, nature, and duration of the applicant's ties to Australia, and the extent of impediments he would face if removed from Australia.

In its reasoning, the Tribunal acknowledged the applicant's extensive criminal history, which spanned from 1987 to 2017 and included over 100 convictions, with significant periods of imprisonment. It noted the applicant's long-term pattern of repeated offending, including violent offences and fraudulent behaviour, and the impact of this conduct on the community. However, the Tribunal also considered the applicant's personal circumstances, including his childhood trauma, long-term substance abuse, and his significant ties to Australia, having arrived as a child and having a large extended family, including children and grandchildren, residing in Australia. The Tribunal also noted the applicant had no known family in the United Kingdom.

Ultimately, the Tribunal found that while the primary considerations, particularly the protection of the Australian community, weighed heavily against revocation, when balanced against the other considerations, it was not appropriate to revoke the decision to cancel the applicant's visa. Therefore, the Tribunal affirmed the decision under review.