Mikaele (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 444 (Special Category) visa of a New Zealand citizen. The applicant, who had been living in Australia with his family since 2013, committed a series of serious offences between January and October 2017, including robbery and assault whilst armed and in company. These offences resulted in a sentence of seven years and eleven months imprisonment, with the applicant having served 362 days in juvenile detention and prison. The delegate's decision to cancel the visa was made on 11 July 2018.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(e)(i) of the *Migration Act 1958* (Cth) existed, specifically whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation under s.116(1)(e)(i) was established, acknowledging that the applicant's past criminal conduct could present a risk to the Australian community. However, in exercising its discretion regarding cancellation, the Tribunal considered various factors presented by the applicant. These included his close family ties in Australia, particularly his role as the eldest of eleven children and the need to support his family, including a younger brother with Down syndrome. The Tribunal also noted the applicant's expressions of remorse, his participation in rehabilitation programs, and his stated desire to make a positive contribution to society, despite the impact of his criminal record on his career aspirations. The Tribunal accepted that the applicant and his family shared a close emotional bond and would suffer hardship if he were to depart Australia.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 444 (Special Category) visa.