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

This matter concerned the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant had a substantial criminal record, having been convicted of stealing by clerks and servants and sentenced to 12 months imprisonment, which was the fourth occasion he had received a sentence of 12 months or more. The visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because the delegate was satisfied the Applicant did not pass the character test due to his substantial criminal record and was serving a full-time custodial sentence. The Applicant sought revocation of the cancellation decision, arguing there was another reason why it should be revoked. The delegate decided not to revoke the cancellation, and the Applicant applied to the Tribunal for a review of that decision.

The Tribunal was required to determine whether it was satisfied that the Applicant passed the character test, or alternatively, whether there was another reason why the visa cancellation decision should be revoked. The Applicant accepted that he did not pass the character test and therefore the focus of the review was on whether there was another reason to revoke the cancellation. In conducting this review, the Tribunal was bound to consider the matters set out in Direction 90, which outlines primary and other considerations to be taken into account when deciding whether to revoke a mandatory visa cancellation.

The Tribunal applied Direction 90, which requires consideration of primary considerations such as the protection of the Australian community from criminal or other serious conduct, family violence, the best interests of minor children, and community expectations. Other considerations include international non-refoulement obligations, impediments to removal, impact on victims, and links to the Australian community. The Tribunal noted that primary considerations are generally given greater weight than other considerations, although this is not an absolute rule. The Applicant submitted that his limited risk of re-offending, the best interests of his Australian citizen sons, impediments to his removal to New Zealand, and the duration and strength of his ties to Australia constituted reasons for revocation. However, after considering these submissions and the principles outlined in Direction 90, the Tribunal was not satisfied that there was another reason why the visa cancellation decision should be revoked.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the Applicant's visa.