Ikupu and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Mr Ikupu and the Minister for Home Affairs concerning the non-revocation of a mandatory visa cancellation. Mr Ikupu's visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test, specifically due to having a substantial criminal record under section 501(7). The central dispute was whether the discretion vested in the AAT under section 501CA of the Act to revoke this mandatory cancellation should be exercised in Mr Ikupu's favour.

The AAT was required to determine whether to revoke the mandatory visa cancellation, taking into account the considerations outlined in Direction No 79. This involved assessing the risk of Mr Ikupu re-offending, the protection and expectations of the Australian community, the impact on his minor children, the strength, nature, and duration of his ties to Australia, the impact on any victims of his conduct, and any impediments to his removal from Australia. The Tribunal had to weigh these factors in deciding whether to exercise its discretion to revoke the cancellation.

In its reasoning, the AAT applied the principles set out in Direction No 79, focusing on the protection of the Australian community. The Tribunal found that Mr Ikupu had a long and concerning history of offending and anti-social behaviour that commenced shortly after his arrival in Australia and continued over many years. This history included convictions for theft, property damage, possessing a prohibited substance, resisting arrest, and robbery using force, as well as reports of violent conduct in a nightclub and an unprovoked assault on a stranger. The Tribunal noted that while some early offending might be attributed to cultural adjustment, the seriousness and frequency of subsequent conduct, including violent acts, weighed heavily against revocation.

Consequently, the AAT decided not to exercise its discretion to revoke the mandatory cancellation of Mr Ikupu's visa. The decision under review, which affirmed the visa cancellation, was therefore upheld.