Galuvao and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant, Galuvao, to review the mandatory cancellation of her Class TY Subclass 444 Special Category (Temporary) visa, following her failure to pass the character test due to a substantial criminal record. The dispute before the Administrative Appeals Tribunal was whether the discretion to revoke the visa cancellation should be exercised in her favour.

The Tribunal was required to determine the weight to be given to various considerations under Ministerial Direction No. 79, including the primary considerations of protecting the Australian community from criminal conduct and the best interests of minor children in Australia, as well as other considerations such as the strength, nature, and duration of the Applicant's ties to Australia and any impediments to her removal to New Zealand. The Tribunal also considered the expectations of the Australian community.

The Tribunal reasoned that while the expectations of the Australian community might weigh against the Applicant, other considerations favoured her. The Applicant had resided in Australia since she was 11 years old, and her life and that of her children were experienced as Australian. Although she could maintain contact with her family from New Zealand, the Tribunal found that her family members would be negatively impacted by her return. Furthermore, the Tribunal noted there were few impediments to her removal to New Zealand, such as linguistic or cultural barriers, and she could access social and mental health services. However, the Tribunal acknowledged she might face some difficulty re-establishing herself due to her long absence. On balance, the Tribunal was satisfied that the delegate's decision not to revoke the cancellation was incorrect.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.