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

This matter concerned an application for review of the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant, a New Zealand citizen, had a substantial criminal record, leading to a previous visa cancellation in 2020 which was subsequently revoked with a warning. In March 2023, the Applicant was apprehended with methylamphetamine with intent to sell or supply, convicted, and his visa was mandatorily cancelled again on 30 January 2024. The review was heard by Senior Member Hon J Rau SC.

The primary legal issue before the Tribunal was whether to affirm the mandatory cancellation of the Applicant's visa, considering the Applicant's character test failure due to his substantial criminal record and the application of Ministerial Direction No. 110. This involved weighing various primary and other considerations, including the protection of the Australian community, the Applicant's ties to Australia, and his prospects of rehabilitation.

The Tribunal found the Applicant's evidence to be unreliable, containing "convenient lacunas and misleading, if not false assertions." In applying Ministerial Direction No. 110, the Tribunal gave significant weight to the protection of the Australian community, noting the Applicant's engagement in serious criminal conduct, including reoffending while on parole and shortly after receiving an explicit warning. The Tribunal concluded that the Applicant presented an ongoing and unacceptable risk to the community, with a moderate to high risk of reoffending, and that previous interventions had not deterred him. While acknowledging the Applicant's ties to Australia, including immediate family and formative years spent there, these factors were outweighed by the paramount consideration of community safety.

The Tribunal affirmed the decision to cancel the Applicant's visa, finding that the factors favouring cancellation, particularly the protection of the Australian community and community expectations, collectively outweighed the considerations against cancellation. The Applicant's desire to marry and claims of seeking professional help were given little weight due to his recent offending.