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

This matter concerned an appeal by the Applicant, Hancox, against the mandatory cancellation of his visa by the Minister for Immigration, Citizenship and Multicultural Affairs. The visa cancellation was based on the Applicant failing to pass the character test due to his criminal offending. The Applicant sought to have this cancellation revoked, arguing there was another reason why it should be set aside. The decision was heard by Chris Puplick AM, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the cancellation of the Applicant's visa was the "correct or preferable" decision, having regard to the evidence before it and the requirements of Ministerial Direction 90. This involved assessing whether there was "another reason" to revoke the visa cancellation, considering the factors outlined in the Direction, which include the protection of the Australian community, the nature and seriousness of the offending conduct, the risk of reoffending, family violence, the best interests of minor children, community expectations, impediments to removal, impact on victims, and links to the Australian community.

The Tribunal considered the Applicant's criminal offending, including a charge of breaking and entering and damage to property, noting the specific circumstances and the sentencing magistrate's explicit finding that there was no allegation of assault. The Applicant provided extensive evidence, including statements detailing his remorse, his drug use history, his plans for rehabilitation, offers of employment, continued child support payments, and his devotion to his son and step-children. His current partner also provided evidence regarding the positive impact of his absence on her and her children, and her willingness to support him. The Tribunal acknowledged that while the nature and seriousness of the offending and the risk of reoffending were given limited weight against the Applicant, "other considerations" could, in appropriate circumstances, outweigh primary considerations, as affirmed by case law such as *Suleiman*.

The Tribunal ultimately set aside the decision to cancel the Applicant's visa and substituted a decision to revoke the cancellation.