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

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) by the Applicant, Heihei, for the revocation of a mandatory visa cancellation. The Applicant had failed to pass the character test due to a substantial criminal record, which included convictions for violent and sexual offences committed in a domestic violence context. The sole issue before the Tribunal was whether there was another reason why the original decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to consider Ministerial Direction No. 99, which outlines the framework for assessing whether another reason exists to revoke a mandatory visa cancellation. This involved weighing primary considerations, such as the protection of the Australian community from criminal or other serious conduct, against other considerations, including the best interests of minor children and impediments to removal. The Applicant's criminal history, including convictions for common assault, assault occasioning actual bodily harm, sexual intercourse without consent, and assault with an act of indecency, was assessed as serious and violent, particularly given its domestic violence context and the fact that some offences were committed while the Applicant was on conditional liberty.

In its reasoning, the Tribunal acknowledged the potential detriment to the Applicant's Australian children if he were removed and his partner and children did not accompany him, noting this as a significant factor. However, the Tribunal found that the evidence overwhelmingly established that the Applicant posed a risk to the community due to a high likelihood of re-offending. This risk, stemming from the nature and seriousness of his past conduct, was considered to outweigh the other considerations presented, including the potential impact on his children and the fact that he had family and industrial skills available in New Zealand. The Tribunal ultimately affirmed the original decision to cancel the Applicant's visa.