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

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal (AAT) to review the decision of the Minister for Immigration, Citizenship and Multicultural Affairs to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to having a substantial criminal record, which included violent offences and family violence. The central dispute was whether there was "another reason" why the decision to cancel the Applicant's visa should be revoked, considering Ministerial Direction No. 99.

The Tribunal was required to determine the weight to be given to various considerations under Ministerial Direction No. 99, specifically focusing on Primary Consideration 1 (the nature and seriousness of the Applicant's conduct and recidivism risk) and Primary Consideration 2 (family violence). The Tribunal had to assess the Applicant's attempts at rehabilitation, including psychological treatment and anger management courses, against the seriousness of his past offending and the risk of reoffending.

The Tribunal reasoned that the Applicant's offending, which included assaults occasioning bodily harm and contravention of domestic violence protection orders, fell squarely within the categories of conduct viewed very seriously by the Australian Government and community under sub-paragraphs 8.1.1(1)(a)(i) and (ii) of the Direction. Despite the Applicant's engagement with psychological treatment and rehabilitation programs, the Tribunal found that there was insufficient cogent material to demonstrate a lowering of the risk to the community. The Tribunal concluded that the Applicant represented a real recidivist risk, and that his rehabilitation attempts had not been tested in the community to a degree that provided comfort regarding a reduced risk. Consequently, this primary consideration carried significant weight against the revocation of the visa cancellation.

Ultimately, the Tribunal affirmed the decision of the Minister's delegate not to revoke the mandatory cancellation of the Applicant's visa. The Tribunal found that a holistic view of the evidence relevant to the primary and other considerations in Ministerial Direction No. 99 favoured affirming the delegate's decision.