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

The Administrative Appeals Tribunal considered the case of Li and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the mandatory cancellation of the Applicant's Class SI Subclass 189 Skilled Independent visa. The Applicant did not pass the character test due to having a substantial criminal record, which was not disputed. The central issue was whether the discretion to revoke the visa cancellation under section 501CA(4) of the Migration Act 1958 should be exercised.

The Tribunal was required to determine if there was "another reason" why the original decision to cancel the visa should be revoked. In making this determination, the Tribunal was bound to comply with Ministerial Direction No. 99, which outlines principles to be considered when assessing visa refusal, cancellation, and revocation of cancellation. These principles include Australia's sovereign right to determine who may enter or remain in the country, the expectation that non-citizens will be law-abiding, and that serious conduct will generally lead to forfeiture of the privilege of remaining in Australia. The Direction also specifies that Australia generally affords a higher level of tolerance for criminal conduct by non-citizens who have lived in the Australian community for most of their lives or from a very young age, with tolerance increasing with the length of time spent in Australia, particularly during formative years.

The Tribunal reasoned that while the Applicant possessed a substantial criminal record, the specific circumstances of his offending, which were directly linked to a marriage breakdown and his incapacity to manage his emotional reaction, warranted consideration. The offending was solely directed at his former wife, and there was no evidence suggesting a broader risk to the community. The Applicant had no prior criminal history before the incident, had expressed remorse, and had taken steps towards rehabilitation, including participating in an anger management program. Furthermore, the Applicant had spent significant time in Australia since 2007 and had established business and family connections. The Tribunal found that these factors, when weighed against the seriousness of the offending, provided a sufficient reason to revoke the mandatory cancellation of the visa.

The Tribunal ordered that the decision to refuse to revoke the mandatory cancellation of the Applicant's visa be set aside.