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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a New Zealand citizen who had resided in Australia since 1999, did not pass the character test due to a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The court was required to determine whether there was another reason why the original decision to cancel the visa should be revoked, as provided by s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The court considered various factors in determining whether to revoke the visa cancellation. These included the protection of the Australian community, the best interests of minor children in Australia affected by the decision, the expectations of the Australian community, and the strength, nature, and duration of the Applicant's ties to Australia. The Applicant presented evidence of his strong family ties in Australia, including his Australian-born sisters and extended family, his employment history, and his participation in church activities. Evidence was also led regarding his remorse and potential for rehabilitation.

The court found that while the seriousness of the Applicant's offending weighed in favour of protecting the Australian community, this consideration was outweighed by other factors. The court accepted that the Applicant's younger sister would be distressed by his removal, and that he was expected to play a guiding role for his siblings. Despite the Applicant's past criminal conduct, the court was satisfied that the risk to the Australian community posed by revoking the visa cancellation was acceptable. Consequently, the court set aside the decision not to revoke the cancellation and substituted a decision to revoke the cancellation of the Applicant's visa.