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

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a 51-year-old UK-born man, had his visa mandatorily cancelled under s 501(3A) of the *Migration Act 1958* due to a substantial criminal record, specifically convictions for distributing prohibited visual recordings and four counts of assault occasioning bodily harm, for which he received a head sentence of 15 months imprisonment, suspended after four months.

The Tribunal was required to determine whether to exercise its discretion to revoke the mandatory cancellation of the Applicant's visa. This involved considering the primary considerations outlined in the relevant Ministerial Direction, particularly the protection of the Australian community, and other considerations. The Tribunal had to assess the nature and seriousness of the Applicant's conduct and the risk to the community should he re-offend.

In its reasoning, the Tribunal acknowledged the seriousness of violent crimes against women, as stipulated in the Direction. However, it also considered factors such as the Applicant's role as a full-time caregiver for his four minor children, his efforts to establish a successful business in Australia, and the fact that the offending occurred during a period of marital conflict. The Tribunal found that while the offending was serious, the risk to the Australian community was not sufficiently high to warrant the continued cancellation of his visa, especially when weighed against his responsibilities and contributions.

Consequently, the Tribunal exercised its discretion to revoke the mandatory cancellation of the Applicant's visa. The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's Class EN (Subclass 186) Employer Nomination Scheme visa.