George and Minister for Home Affairs (Migration)

This matter concerned an application for the revocation of a mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa. The applicant, George, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he failed to pass the character test and had served a full-time term of imprisonment. The applicant sought to have this mandatory cancellation revoked. The decision was made by Senior Member Theodore Tavoularis of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501CA of the Migration Act 1958 (Cth) to revoke the mandatory visa cancellation should be exercised in the applicant's favour. This required the Tribunal to consider the relevant considerations outlined in Direction No 65, particularly the protection of the Australian community from criminal or other serious conduct, and the risk of further offending. The Tribunal also had to weigh any other substantial reasons presented by the applicant for the revocation of the cancellation.

In reaching its decision, the Tribunal reviewed the applicant's evidence, including his explanation for the offending conduct that led to the visa cancellation, his remorse, and the steps he had taken towards rehabilitation, such as completing various courses. The Tribunal also considered the applicant's significant criminal history, which spanned offences in both New Zealand and Australia, including multiple driving under the influence and unlicensed driving convictions, as well as a conviction for grievous bodily harm. The Tribunal noted the applicant's assertions about his desire to care for his partner and young daughter, and the difficulties his partner faced as the primary carer for her ill mother and siblings. However, the Tribunal found that the applicant's offending history, particularly the nature and seriousness of his conduct and the risk of further offending, weighed heavily against revocation.

Ultimately, the Tribunal concluded that there was no other reason why the cancellation of the applicant's visa should be revoked. Accordingly, the Tribunal affirmed the decision under review and made no order revoking the cancellation of the applicant's visa.