JL and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by JL against a decision by the Minister for Immigration and Border Protection to cancel his visa on character grounds, specifically due to a substantial criminal record. The Minister had applied Ministerial Direction No. 65 in making the decision. The appeal was heard by Deputy President B W Rayment of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the Minister's decision to cancel the applicant's visa was correct or preferable, considering the mandatory considerations outlined in Ministerial Direction No. 65, including the protection of the Australian community, evidence of rehabilitation, the passage of time since offending, and the expectations of the Australian community. The Tribunal was also required to consider "other considerations," such as the applicant's ties to Australia, the best interests of his minor children, and the ill-health of his wife.

Deputy President Rayment reasoned that while the consideration of the expectations of the Australian community generally favours affirming a decision to cancel a visa, this was a legal construct rather than an assessment of actual community views. The Tribunal found that the applicant had significant ties to Australia, having lived there his whole life, and that his removal would severely impact his relationships with his son, sisters, and their families. Crucially, the ill-health of the applicant's wife, and the disruption she would face in terms of medical care and separation from her family if she were to relocate to New Zealand, was considered a significant "other" reason to set aside the decision. The Tribunal also noted that impediments to removal were not a factor favouring affirmation.

Balancing all these mandatory and other considerations, the Tribunal concluded that the correct or preferable decision was to set aside the visa cancellation decision and remit it for reconsideration. The Tribunal directed that the discretion under s.501(2) of the Migration Act 1958 (Cth) should be exercised in the applicant's favour.