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

This matter concerned an application to the Administrative Appeals Tribunal for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of the United Kingdom who had resided in Australia since childhood, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) following convictions for possessing and distributing child exploitation material, for which he received a total effective sentence of three years imprisonment. The delegate's decision not to revoke this cancellation was the decision under review.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by section 501(6) of the Migration Act, and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked, pursuant to section 501CA(4) of the Act. The Tribunal considered various factors outlined in Direction No 99, including the nature and seriousness of the offending, the risk to the Australian community, the applicant's ties to Australia, the best interests of any children involved, community expectations, and impediments to removal.

In reaching its decision, the Tribunal applied the principles set out in Direction No 99, which guides the consideration of primary and other considerations when assessing whether to revoke a visa cancellation. The Tribunal weighed the serious nature of the applicant's criminal offending, particularly the possession and distribution of child exploitation material, against his long period of residence in Australia and his limited ties to the United Kingdom. After considering all the evidence and submissions, including statutory declarations from associates and family members, the Tribunal concluded that the correct and preferable decision was to affirm the delegate's decision not to revoke the visa cancellation.