Kennedy and Minister for Home Affairs (Migration)

The applicant, a New Zealand citizen who arrived in Australia as a child, sought review of the delegate's decision not to revoke the mandatory cancellation of his visa. The cancellation was triggered by his conviction for serious criminal offences, including armed robbery, robbery, dangerous driving while pursued by police, and using threatening words in a public place, for which he received a sentence of 5½ years imprisonment with a non-parole period of 3½ years. The central issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation, applying the considerations outlined in Direction No. 79.

The Tribunal was required to determine if the applicant's circumstances warranted the revocation of his visa cancellation, considering the principles set out in Direction No. 79. These principles emphasise Australia's sovereign right to determine who remains in the country, the community's expectation that serious offenders will be denied the privilege of remaining, and the generally low tolerance for criminal conduct by non-citizens. The Direction also highlights that while a longer period of residence in Australia might afford a higher level of tolerance for offending, the protection of the Australian community, the best interests of minor children, and community expectations are primary considerations in deciding whether to revoke a cancellation.

In its reasoning, the Tribunal carefully weighed all the considerations in accordance with Direction No. 79. It acknowledged the applicant's long period of residence in Australia, having lived there for most of his life since the age of nine. However, the Tribunal found that the gravity of the applicant's violent offending, particularly armed robbery and dangerous driving while pursued by police, weighed heavily against revocation. The Tribunal concluded that the overall balance of considerations, including the protection of the Australian community, tipped slightly in favour of not revoking the mandatory cancellation. Consequently, the Tribunal affirmed the delegate's decision.