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

This matter concerned an appeal by Mr McLeod against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs regarding the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The dispute arose because Mr McLeod failed the character test due to a substantial criminal record, specifically a conviction for armed robbery for which he received an eight-year prison sentence. The Administrative Appeals Tribunal was tasked with determining whether there was "another reason" why the visa cancellation should be revoked.

The primary legal issue before the Tribunal was whether the discretion to revoke the mandatory visa cancellation was enlivened. This required the Tribunal to consider the factors outlined in Ministerial Direction No. 79, which mandates consideration of several primary and other considerations. These included the protection of the Australian community, the nature and seriousness of Mr McLeod's conduct, the risk he posed to the community, the best interests of any affected minor children, and the expectations of the Australian community. The Tribunal also had to consider relevant other considerations, such as the strength and duration of Mr McLeod's ties to Australia and the impediments he might face if removed.

The Tribunal reasoned that while Mr McLeod failed the character test, the crucial question was whether there was a compelling reason to revoke the cancellation. Applying Ministerial Direction No. 79, the Tribunal noted that Mr McLeod's past offending, including violent crimes and repeated offending, weighed heavily against revocation. The Tribunal acknowledged that Mr McLeod had previously had his visa cancelled and restored, but had subsequently re-offended. Despite the seriousness of his past conduct, the Tribunal found that Mr McLeod's stated desire to take responsibility for his young family, supported by his partner and others, constituted "another reason" sufficient to revoke the cancellation. The Tribunal emphasised that the power to revoke is only enlivened by a reason of sufficient weight and significance.

Consequently, the Tribunal set aside the decision not to revoke the visa cancellation and, in substitution, revoked the mandatory cancellation of Mr McLeod's visa under section 501CA(4)(b)(ii) of the Migration Act 1958.