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

This case concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant's visa had been mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to her substantial criminal record, specifically a conviction for dangerous driving occasioning death in aggravated circumstances. The Applicant sought revocation of this cancellation decision.

The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the Applicant passed the character test, or alternatively, whether there was "another reason" why the visa cancellation decision should be revoked. In considering these issues, the Tribunal was guided by Direction No 79, which outlines the primary and other considerations to be taken into account. These considerations included the protection of the Australian community, the nature and seriousness of the offending, the risk to the community, the best interests of minor children, community expectations, the strength and duration of ties to Australia, and the impact of removal.

The Tribunal's reasoning focused on the Applicant's criminal offending, which involved a single conviction for dangerous driving occasioning death. The factual circumstances of the offence, as described by the sentencing judge, indicated that the Applicant was distracted by text messages while driving at excessive speed, leading to a loss of control and a fatal collision. Despite this serious offence, the Tribunal found that there was "another reason" why the cancellation decision should be revoked. This finding was based on a holistic assessment of the various considerations, including the Applicant's ties to Australia, the impact of removal, and other personal circumstances, which collectively outweighed the factors favouring cancellation.

Ultimately, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted a new decision revoking the cancellation. This meant that the Applicant's visa was no longer cancelled.