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

This case concerned an application by Mr Law, a citizen of Hong Kong who had resided in Australia since 2009, for the revocation of a mandatory visa cancellation. Mr Law's Partner (Residence) visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he had a substantial criminal record, having been sentenced to 15 months imprisonment for a police pursuit offence. The matter came before the Administrative Appeals Tribunal for review of the delegate's decision not to revoke the mandatory cancellation.

The primary legal issues before the Tribunal were whether Mr Law had made representations in accordance with the invitation to seek revocation of the visa cancellation, and if so, whether he passed the character test or if there was another reason to revoke the cancellation. The Tribunal was required to consider Ministerial Direction No. 79, which outlines the primary and other considerations for such decisions, with primary considerations generally carrying greater weight. These primary considerations include the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal considered Mr Law's personal circumstances, including his remorse, his efforts to address his alcohol abuse, his strong ties to his Australian wife and four children, particularly his youngest daughter who has a serious hearing impairment, and the financial hardship his detention had caused his family. The Tribunal also noted Mr Law's significant driving offences and disqualification. Ultimately, the Tribunal found that the considerations in favour of non-revocation outweighed those in favour of revocation.

The Tribunal set aside the delegate's decision not to revoke the mandatory cancellation and remitted the matter to the Minister with a direction that the original decision of 18 March 2019 not be set aside. This outcome indicates that while the delegate's decision was flawed, the Tribunal did not substitute its own decision to revoke the cancellation, but rather directed that the original cancellation decision stand.