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

This matter concerned an application for review of a delegate's decision to refuse to revoke the mandatory cancellation of the applicant's Subclass 444 Special Category (Temporary) visa. The applicant, a citizen of the United Kingdom who had resided in Australia since the age of four, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record and serving a full-time custodial sentence of over two years for family violence related offences. The applicant sought a review of the delegate's decision to decline revocation, which was heard by Senior Member K Millar of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: firstly, whether the applicant passed the character test, and secondly, if he did not pass the character test, whether there was another reason why the cancellation of his visa should be revoked. In considering the latter issue, the Tribunal was bound by Ministerial Direction No. 99, which outlines the considerations for exercising the power to revoke a mandatory visa cancellation.

In its reasoning, the Tribunal found that the applicant did not pass the character test due to his substantial criminal record. However, it then proceeded to consider whether there were other reasons to revoke the cancellation, applying the principles in Ministerial Direction No. 99. The Tribunal gave significant weight to the applicant's strong and long-standing ties to Australia, having lived there for most of his life, and the detrimental impact the cancellation would have on his two Australian citizen children, particularly his daughter who has type 1 diabetes. The Tribunal also considered the applicant's supportive parents, one of whom is an Australian citizen and provides care for his seriously ill stepmother, noting that the applicant's presence would assist in this care. While acknowledging some connections through school and work, the Tribunal found minimal impact on other family members.

Ultimately, the Tribunal determined that the strength of the applicant's ties to Australia and, crucially, the best interests of his minor children, weighed heavily in favour of revoking the visa cancellation. Consequently, the Tribunal set aside the delegate's decision and revoked the cancellation of the applicant's visa.