Mitchell and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter 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, a 27-year-old United Kingdom citizen who arrived in Australia at age 12, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, having been sentenced to a total effective term of imprisonment of 3 years and 3 months for offences including grievous bodily harm and assault occasioning bodily harm. The Administrative Appeals Tribunal (AAT) was required to determine whether there was another reason why the visa cancellation decision should be revoked, having regard to Direction No 99.

The Tribunal was tasked with considering various factors outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the Applicant's offending, the risk of future offending, the strength, nature, and duration of the Applicant's ties to Australia, the best interests of any children, and community expectations. It was not disputed that the Applicant did not pass the character test due to his substantial criminal record. The Tribunal considered evidence from the Applicant, his family members, and a forensic psychologist regarding his rehabilitation prospects and risk of reoffending.

In its reasoning, the Tribunal found that while the Applicant's offending was serious, his strong ties to Australia, including his Australian citizen wife and daughter, and his residence in Australia since childhood, weighed significantly in favour of revocation. The Tribunal accepted that the Applicant considered himself Australian and had completed his formative years in the country, undertaking education and employment. The Tribunal also considered the impact of his removal on his immediate family, noting his wife's mental health struggles and his mother's reliance on his support. The Tribunal ultimately concluded that the correct and preferable decision was to set aside the delegate's decision and substitute it with a decision revoking the cancellation of the Applicant's visa.