Haidas and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Haidas for the non-revocation of a mandatory cancellation of his Class TY Subclass 444 Special Category Temporary visa. The Minister for Immigration, Citizenship and Multicultural Affairs opposed the application. The Administrative Appeals Tribunal was required to determine whether Haidas passed the character test and whether there was another reason why the decision to cancel his visa should be revoked, considering Ministerial Direction No. 90.

The Tribunal was tasked with assessing Haidas's character in light of his substantial criminal record and determining if any countervailing considerations justified revoking the visa cancellation. This involved applying the principles outlined in Ministerial Direction No. 90, which guides decision-makers on the sovereign right of Australia to control who remains in the country, the expectation that serious conduct will lead to visa refusal or cancellation, and the varying tolerance for criminal conduct based on an individual's ties to the Australian community. The Tribunal was also required to consider the four Primary Considerations (protection of the Australian community, family violence, best interests of minor children, and community expectations) and relevant Other Considerations.

The Tribunal's reasoning focused on the risk of Haidas re-offending. It noted that paragraph 8.1.2(2) of Direction 90 requires consideration of the nature of potential harm, the likelihood of re-offending, and evidence of rehabilitation. The Tribunal assessed the potential harm if Haidas were to re-offend in categories such as drug supply, unlicensed driving, common assault, affray, or break and enter, concluding that such conduct could cause physical, psychological, and material harm to individuals and the Australian community. The Tribunal also considered the cumulative impact of factors including the likelihood of re-offending and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.

Ultimately, the Tribunal set aside the original decision to cancel Haidas's visa and substituted it with a decision revoking that cancellation.