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

This matter concerned an appeal by Mr Hastibeer against the mandatory cancellation of his visa, which had been based on his substantial criminal record. The dispute before the Administrative Appeals Tribunal was whether the discretion to revoke the mandatory cancellation of Mr Hastibeer's visa should be exercised in his favour.

The Tribunal was required to determine the weight to be given to the primary considerations, including Mr Hastibeer's criminal convictions for two counts of robbery while armed with a dangerous weapon, and the "other" considerations, such as the significant hardship he would face if deported to South Africa. The Tribunal also had to assess the likelihood of Mr Hastibeer reoffending, taking into account his history of drug abuse and the nature of the offences committed.

The Tribunal reasoned that while the primary considerations, particularly the seriousness of the two robberies committed within a short period, weighed heavily in favour of affirming the cancellation, the "other" considerations were sufficiently important to outweigh them. These included Mr Hastibeer's long residence in Australia since childhood, his lack of skills, the difficult job market and poorer social infrastructure in South Africa, and the potential challenges in accessing necessary ongoing psychotherapy. The Tribunal noted that the robberies were committed with a replica pistol and that had a loaded weapon been used, the decision would likely have been different. The Tribunal ultimately decided to set aside the delegate's decision and substitute it with a decision to revoke the visa cancellation, emphasizing that this was a final opportunity for Mr Hastibeer to avoid deportation.