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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant did not dispute that he had a "substantial criminal record" and therefore failed the character test. The sole issue before the Tribunal was whether there was another reason why the visa cancellation should be revoked.

The Tribunal was required to determine whether the Applicant had established another reason to revoke the visa cancellation, considering the principles outlined in Ministerial Direction No. 90. This involved assessing the nature and seriousness of the Applicant's offending conduct, the risk to the Australian community, the best interests of minor children, the strength, nature, and duration of the Applicant's ties to Australia, and any impediments to his removal.

The Tribunal found that while the Applicant's criminal history, including multiple offences against police officers and family violence offences, was serious and warranted significant weight, there were compelling countervailing factors. These included the Applicant's history of trauma, including childhood abuse and the severe injury of his brother, which contributed to his PTSD, anxiety, depression, and alcohol abuse. The Tribunal also considered the Applicant's strong ties to Australia through his two minor children, who were Australian citizens and relied on him for support, and the lack of family support in New Zealand. The Tribunal concluded that these factors, taken together, constituted another reason to revoke the cancellation decision.

Consequently, the Tribunal set aside the delegate's decision and, in substitution, revoked the cancellation of the Applicant's visa.