GWFM and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant, a New Zealand citizen who had resided in Australia since he was 13 years old, to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the Applicant having a substantial criminal record, including offences of sexual assault and armed robbery. The Applicant appeared in person, represented by counsel, and the Respondent was represented by counsel. The decision was made by B J Illingworth SM.

The primary legal issue before the Tribunal was whether to exercise the discretion to revoke the mandatory cancellation of the Applicant's visa. This required the Tribunal to consider the factors outlined in the Migration Act 1958 (Cth) and associated Directions, particularly those relating to the protection of the Australian community and the Applicant's personal circumstances. The Tribunal had to assess the nature and seriousness of the Applicant's offending, the risk to the community, and other relevant considerations.

In reaching its decision, the Tribunal applied the principles set out in the Directions, which mandate consideration of factors such as the seriousness of violent and sexual crimes, the cumulative effect of repeated offending, and the sentence imposed by the courts. The Tribunal also had regard to the Applicant's personal history, including his significant mental health issues, his remorse, and the steps taken towards rehabilitation, such as his mental health being in remission and his engagement with support services. The Tribunal weighed these factors against the seriousness of his criminal conduct and the need to protect the Australian community.

Ultimately, the Tribunal exercised its discretion to revoke the mandatory cancellation of the Applicant's visa. The Tribunal set aside the delegate's decision to refuse revocation and substituted a decision that the visa cancellation be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).