Muller 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 Class BF Transitional (Permanent) visa. The applicant, who was 62 years old and born in Tonga, had resided in Australia since 1981. The mandatory cancellation was triggered by the applicant's substantial criminal record, specifically a sentence of three years and nine months imprisonment for offences including recklessly causing serious injury and common law assault. The applicant conceded he did not pass the character test.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation of the applicant's visa, as contemplated by section 501(3A) of the Migration Act 1958 (Cth). This required the Tribunal to consider various factors outlined in Direction No. 99, including the protection of the Australian community, the expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia, the best interests of any minor children, and the extent of impediments if removed.

The Tribunal considered the applicant's extensive criminal history, including multiple instances of drink driving, which it found to be a significant social problem and indicative of a failure to learn from past mistakes. It noted the risk posed to the Australian community by the applicant's potential for further violence and dangerous driving. While acknowledging the applicant's long ties to Australia, his partner and children residing there, and his Tongan cultural connections, the Tribunal found these factors were outweighed by the risk to the community. The Tribunal also considered the legal consequences of removal and the extent of impediments if removed, but found no evidence of non-refoulement obligations or significant impediments to the applicant establishing himself in Tonga.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.