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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category visa. The visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to the applicant failing the character test, specifically by reason of having a substantial criminal record and serving a term of imprisonment exceeding 12 months. The applicant, a citizen of New Zealand, sought revocation of the cancellation, which was refused by the Minister's delegate. The Administrative Appeals Tribunal (AAT) reviewed this refusal.

The AAT was required to determine the appropriate weight to be given to various considerations under Ministerial Direction No. 99, including the primary consideration of protecting the Australian community, and other considerations such as the strength and duration of the applicant's ties to Australia, the best interests of any minor children, and the expectations of the Australian community. The Tribunal also had to consider the seriousness of the applicant's offending, the risk of reoffending, and the legal consequences and impediments to removal.

The Tribunal applied the principles outlined in Ministerial Direction No. 99, noting that while primary considerations are generally given greater weight, "other" considerations are not automatically secondary and may, in certain circumstances, warrant the greatest weight. The Tribunal considered the applicant's extensive criminal history, which included convictions for common assault (spitting on a victim), unlawful use of motor vehicles, contravention of a domestic violence order, and common assault in a domestic violence context, resulting in multiple custodial sentences. The Tribunal found that the applicant's conduct was very serious and posed a risk to the Australian community. After weighing all relevant primary and other considerations, the Tribunal affirmed the decision not to revoke the visa cancellation.