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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, who had resided in Australia for seven years, was subject to mandatory visa cancellation due to a substantial criminal record, which included offences such as aggravated burglary, property offences, dishonesty offences, numerous breaches of court orders, and traffic offences, alongside a history of methamphetamine addiction. The primary considerations for the delegate, and subsequently the Tribunal, included the protection of the Australian community, the nature and seriousness of the Applicant's conduct, and the risk posed to the community.

The legal issues before the Tribunal were twofold: 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 to revoke the cancellation decision under section 501CA(4) of the Migration Act. The Tribunal was required to consider the primary considerations outlined in Direction No 90, including the protection of the Australian community, the nature and seriousness of the conduct, and the risk to the community, as well as other considerations such as impediments to establishing a life in New Zealand, links to the Australian community, and community expectations.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. In assessing whether there was another reason to revoke the cancellation decision, the Tribunal considered the factors outlined in Direction No 90. It was noted that the Applicant had voluntarily returned to New Zealand, and there were no significant impediments to him establishing himself there, given New Zealand's comparability to Australia and the absence of substantial language or cultural barriers. The Tribunal also considered the expectations of the Australian community, which weighed strongly against revoking the cancellation decision, particularly in light of the Applicant's criminal history and the risk he posed. The Tribunal concluded that there was no other reason to revoke the cancellation decision.

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