Moore and Minister for Immigration and Border Protection (Migration)

This matter concerned an application to review the mandatory cancellation of Mr. Moore's visa. Mr. Moore, a New Zealand citizen, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record and failing to pass the character test. The cancellation was based on his conviction for possessing a modified firearm with a round in the chamber, for which he received a two-and-a-half-year prison sentence, and numerous other offences in both Australia and New Zealand. The Administrative Appeals Tribunal was required to determine whether to exercise its discretion under section 501CA(4) of the Act to revoke the mandatory cancellation.

The primary legal issues before the Tribunal were whether the discretion to revoke the visa cancellation should be exercised, considering the mandatory considerations outlined in Direction 65. These considerations included the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal also had to assess other relevant factors, such as Mr. Moore's non-refoulement obligations, the strength, nature, and duration of his ties to Australia, and the extent of impediments he might face if removed.

In its reasoning, the Tribunal gave significant weight to Mr. Moore's extensive criminal history, particularly the serious nature of his offending, including firearms and drug offences, and the circumstances of the 2015 firearm offence which posed a serious threat to children. The Tribunal noted the sentence imposed, the frequency and escalating trend of his offending, and the cumulative effect of his repeated disregard for Australian laws. It concluded that there remained an unacceptable risk that Mr. Moore might engage in further criminal conduct, thereby posing a risk to the Australian community. The Tribunal found no significant impediments to Mr. Moore's removal to New Zealand, given the cultural similarities and availability of support services there. Consequently, the Tribunal affirmed the decision to cancel Mr. Moore's visa.