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

This matter concerned an application by GDRS, a New Zealand citizen, to review the mandatory cancellation of his subclass 444 special category visa. The applicant had failed to pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the discretion to revoke the mandatory cancellation of the visa should be exercised in the applicant's favour.

The Tribunal was tasked with considering the relevant legislative framework, including the grounds for mandatory cancellation under section 501(6) of the Migration Act 1958 (Cth) and the considerations for exercising discretion under Direction No. 79. This involved assessing the nature and seriousness of the applicant's conduct, the risk to the Australian community, and other relevant considerations such as the strength of ties to Australia and the impact on victims. The Tribunal also had to weigh the best interests of the applicant's children as a primary consideration.

In its reasoning, the Tribunal acknowledged the applicant's substantial criminal record, which included convictions for common assault (DV) and assault occasioning actual harm (DV). The sentencing remarks highlighted the violent nature of these offences, which were committed against his ex-partner while she was holding their child. The Tribunal noted the delegate's concern regarding the applicant's lack of insight into his offending and the potential for re-offending. However, the Tribunal also considered evidence presented by the applicant, including references and testimony from family members and his employer, which spoke to his positive attributes and efforts to reform. Ultimately, the Tribunal found that the primary consideration of the best interests of the applicant's children would be best served by not cancelling the visa, and that the other considerations, when weighed against the risk to the community, did not necessitate the cancellation. The decision under review was set aside.