HWYY and Minister for Home 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's visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record, including convictions for aggravated burglary and threats to injure, endanger or harm a person, among other offences. The applicant had made representations to the Minister regarding the cancellation, which were considered by a delegate. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation decision, having regard to Ministerial Direction No. 65.

The Tribunal was required to assess the applicant's character in light of his criminal offending and consider the primary and other considerations outlined in Ministerial Direction No. 65. These considerations included the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, the nature and seriousness of the criminal offending, the risk of future criminal conduct, and the strength, nature, and duration of the applicant's ties to Australia. The applicant had resided in Australia since he was three months old and had significant family ties and community contributions.

In its reasoning, the Tribunal noted the applicant's substantial criminal record, which included serious offences and custodial sentences. It also acknowledged the applicant's representations concerning his Australian citizenship of his children, his lengthy residence in Australia, his family ties, his community contributions, his remorse, his rehabilitation efforts, and his fears of harm if returned to New Zealand. The Tribunal was tasked with weighing these factors against the need to protect the Australian community and uphold immigration laws. The Tribunal ultimately affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.