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

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant, a New Zealand citizen who had resided in Australia since childhood, did not pass the character test due to a serious criminal record, including offences of assault on police officers, public nuisance, armed robbery, and grievous bodily harm. The review was heard by Illingworth SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation, as required by section 501CA(4)(b) of the Migration Act 1958 (Cth), given that the Applicant did not pass the character test. This required the Tribunal to consider the factors outlined in Ministerial Direction 90, including the protection of the Australian community, the best interests of minor children, expectations of the Australian community, and the Applicant's links to Australia. The Tribunal also had to consider the impact of section 85ZR(2) of the Crimes Act 1914 (Cth) and relevant Queensland legislation regarding the consideration of a youth's criminal history.

The Tribunal reasoned that while the Applicant had significant links to the Australian community and some factors weighed in his favour, the seriousness and increasing nature of his offending, particularly the offences of armed robbery and grievous bodily harm, and his continued offending whilst in immigration detention, weighed heavily against revocation. The Tribunal found that the primary considerations of protecting the Australian community and the expectations of the Australian community were so significant that they outweighed the considerations favouring the Applicant, such as his links to the community and the impediments to removal. Consequently, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the Applicant's visa.