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

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs. The delegate had decided not to revoke the mandatory cancellation of the Applicant's visa, which had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to the Applicant having a substantial criminal record and serving a sentence of imprisonment. The Applicant, a 28-year-old man who arrived in Australia as an 11-year-old refugee, sought revocation of this cancellation decision.

The Tribunal was required to determine two issues: first, whether the Applicant passed the character test as defined by section 501(6) of the Migration Act; and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked, pursuant to section 501CA(4) of the Act. The Tribunal considered various factors, including the nature and seriousness of the Applicant's offending, the risk to the Australian community, the strength and duration of his ties to Australia, the best interests of his minor children, community expectations, and the impediments to his removal from Australia.

In its reasoning, the Tribunal applied the principles outlined in Direction No 99, which guides delegates in considering primary and other considerations when assessing whether to revoke a mandatory visa cancellation. The Tribunal weighed the Applicant's criminal conduct against his significant ties to Australia, his refugee background, his rehabilitation efforts, and the impact on his minor children. Ultimately, the Tribunal found that there was another reason to revoke the cancellation decision, considering the totality of the circumstances and the specific factors relevant to the Applicant's case.

The Tribunal concluded that the correct and preferable decision was to set aside the delegate's decision not to revoke the visa cancellation. The Tribunal substituted this with a decision that the mandatory cancellation of the Applicant's visa be revoked.