Lilly and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of the mandatory cancellation of Mr Lilly's visa. The Minister for Immigration and Border Protection had cancelled Mr Lilly's visa under section 501(3A) of the Migration Act 1958 (Cth) on the basis that Mr Lilly did not pass the character test due to having a substantial criminal record and serving a sentence of imprisonment. Mr Lilly sought to have this cancellation revoked under section 501CA(4) of the Act. The Administrative Appeals Tribunal was required to determine whether it was satisfied that Mr Lilly passed the character test or if there was another reason to revoke the mandatory cancellation.

The Tribunal was required to consider the provisions of the Migration Act and Direction 65, which provides guidance on the exercise of the discretion to revoke a mandatory visa cancellation. Specifically, the Tribunal had to assess whether Mr Lilly posed an unacceptable risk to the Australian community, considering the nature and seriousness of his past offending and the likelihood of re-offending. The Tribunal also had to weigh this against other relevant considerations, such as the best interests of minor children and the expectations of the Australian community, as outlined in Direction 65.

The Tribunal found that Mr Lilly had a substantial criminal record, including serious and violent offending, and that he was serving a custodial sentence at the time of the cancellation, thus mandating the cancellation under section 501(3A). In considering the revocation under section 501CA(4), the Tribunal applied Direction 65, which mandates consideration of primary factors including the protection of the Australian community. Despite Mr Lilly's assertions of remorse and participation in rehabilitation courses, the Tribunal found insufficient evidence to be satisfied that he did not pose a risk of engaging in serious conduct in the future. The Tribunal noted the presumption under section 163 of the Evidence Act 1995 (Cth) regarding the sending of letters, which Mr Lilly sought to rebut by claiming non-receipt of a letter.

The Tribunal concluded that the nature and seriousness of Mr Lilly's offending weighed heavily against the revocation of the mandatory visa cancellation. It found that any risk of his serious and violent criminal conduct being repeated was unacceptable, and therefore, the mandatory cancellation of Mr Lilly's visa was affirmed.