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

Senior Member Griffin QC of the Administrative Appeals Tribunal considered the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa held by Mr Gibbons. The visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) on the basis that Mr Gibbons did not pass the character test due to having a substantial criminal record. The dispute centred on whether the Minister's decision to cancel the visa should be set aside.

The Tribunal was required to determine whether the Minister had correctly applied Ministerial Direction No. 90, specifically the weight given to the primary considerations. These included the protection of the Australian community, the seriousness of the offending and any future risk, family violence, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the extent of impediments to removal, the impact on victims, and Mr Gibbons' links to the Australian community, including the strength, nature, and duration of those ties.

In reaching its decision, the Tribunal found that while the primary considerations weighed against Mr Gibbons, the Tribunal was not satisfied that the Minister had given sufficient weight to the strength and duration of Mr Gibbons' ties to Australia, particularly his long-term residence and established community connections. The Tribunal also considered the limited nature of his offending and the steps he had taken towards rehabilitation. Consequently, the Tribunal set aside the decision to cancel the visa and substituted a new decision to refuse to grant the visa.