GDZY and Minister for Immigration and Border Protection (Migration)

This matter concerned the review of a decision by a delegate of the Minister for Immigration and Border Protection not to revoke the mandatory cancellation of GDZY’s visa. GDZY, a New Zealand citizen who had resided in Australia for most of his life, had his visa cancelled under s 501(3A) of the Migration Act 1958 following a conviction for two counts of criminal damage by fire, for which he received a sentence of four years and six months imprisonment. The delegate was not satisfied that GDZY passed the character test, nor that there was another reason to revoke the cancellation. The Administrative Appeals Tribunal (the Tribunal) was therefore required to consider whether there was any reason to revoke the visa cancellation under s 501CA(4)(b) of the Migration Act.

The central legal issue before the Tribunal was whether the discretion to revoke the mandatory visa cancellation was enlivened, and if so, whether it was appropriate to exercise that discretion. This required the Tribunal to determine if GDZY passed the character test, or if there was another reason for revocation, in accordance with Direction No. 65 issued by the Minister. The Tribunal noted that it was not disputed that GDZY had a substantial criminal record, as defined by s 501(7)(c) of the Migration Act, and therefore did not pass the character test.

In its consideration, the Tribunal weighed the primary and other considerations as outlined in Direction No. 65. Having regard to all the evidence presented, including various statements, reports, and oral evidence, the Tribunal concluded that there was no other reason to revoke the decision to cancel GDZY’s visa. Consequently, the Tribunal determined that the correct and preferable decision was to exercise the discretion to not revoke the cancellation. The Tribunal affirmed the decision under review.