McGrath and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Benjamin McGrath to review a decision made by a delegate of the Minister for Home Affairs to cancel his Class BF Transitional (Permanent) visa under section 501(2) of the Migration Act 1958. The applicant, a citizen of the United Kingdom who had resided in Australia since infancy, possessed a significant criminal history including multiple convictions for violent offences.

The primary legal issue before the Tribunal was whether to exercise the discretion under section 501(2) of the Act to cancel the applicant's visa, having found that he did not pass the character test due to a substantial criminal record. This required the Tribunal to consider the principles outlined in Direction no. 65, which governs the exercise of discretion in visa refusal and cancellation cases under section 501.

The Tribunal reasoned that the applicant did not pass the character test as he had been sentenced to terms of imprisonment exceeding 12 months on multiple occasions, satisfying the definition of a substantial criminal record under section 501(7)(c). In exercising the discretion to cancel the visa, the Tribunal weighed various considerations as mandated by Direction no. 65. It found that the protection of the Australian community and the community's expectations regarding serious criminal offending weighed heavily in favour of cancellation. While acknowledging that the best interests of the applicant's minor children and his ties to Australia were significant countervailing considerations, the Tribunal concluded that these were outweighed by the seriousness of his criminal conduct and the risk of re-offending.

Consequently, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.