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

This matter concerned an appeal by the Applicant against the delegate of the Minister's decision not to revoke the mandatory cancellation of his visa. The Applicant had failed to pass the character test due to a substantial criminal record, which included serious offences. The primary issue before the Administrative Appeals Tribunal was whether there was another reason why the mandatory cancellation decision should be revoked, having regard to the considerations set out in Direction No 79.

The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation of his visa. This determination was to be made by considering the primary and other considerations outlined in Direction No 79, which include the protection of the Australian community, the nature and seriousness of criminal offending, the risk to the Australian community, the best interests of minor children, community expectations, the strength, nature and duration of ties to Australia, and the extent of impediments if returned to the United Kingdom.

The Tribunal found that paragraph 14.1 of Direction No 79 was not applicable as the material before it did not raise any non-refoulement issues. In assessing the strength, nature, and duration of the Applicant's ties to Australia under paragraph 14.2(1), the Tribunal noted that the Applicant had resided in Australia since he was 22 months old, had completed his schooling and had his entire work history in Australia. The Tribunal also considered paragraph 6.3(5) and (7) of Direction No 79, which indicate that while Australia has a low tolerance for criminal conduct by those who have only recently contributed to the community, a higher level of tolerance may be afforded to those who have lived in Australia for most of their lives or from a very young age. The Applicant's first offences were committed approximately 13 years after his arrival, and his first adult convictions occurred when he was 20, meaning he did not offend soon after arriving in Australia.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa.