Hadfield and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant had failed the character test due to a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation decision, having regard to the primary and other considerations set out in Direction No 79.

The Tribunal was required to consider several primary considerations under Direction No 79, including the protection of the Australian community, the best interests of minor children in Australia, the expectations of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and the extent of impediments if returned to New Zealand. The Tribunal noted that the consideration of the expectations of the Australian community, as interpreted in previous case law, was generally adverse to an applicant who had failed the character test due to serious criminal convictions.

The Tribunal found that the second primary consideration, the best interests of minor children in Australia, was not applicable in this case. The Tribunal then considered the expectations of the Australian community, referencing paragraph 13.3 of Direction No 79, which states that the community expects non-citizens to obey Australian laws and that non-revocation may be appropriate where a non-citizen has breached this trust or has been convicted of offences. The Tribunal also referred to paragraph 6.3(2) and (3) of the Direction, which indicate that the community expects serious offenders to be denied the privilege of staying in Australia. The Tribunal acknowledged the interpretation from *YNQY v Minister for Immigration and Border Protection* that this consideration is generally adverse to an applicant and is intended to weigh against revocation in cases of serious criminal convictions. The applicant had voluntarily returned to New Zealand pending the outcome of the review.