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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 21-year-old New Zealand citizen who arrived in Australia at age 12, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) following a conviction for reckless grievous bodily harm in company, for which he was sentenced to 3 years and 6 months imprisonment. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the visa cancellation.

The Tribunal was required to consider the factors outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the offending, the risk of future offending, the strength of the applicant's ties to Australia, the best interests of any children, community expectations, and the impediments to the applicant if removed from Australia or returned to New Zealand. The Tribunal noted that while the expectations of the Australian community weighed against revocation, this consideration was afforded moderate weight. The applicant expressed concerns about returning to New Zealand, citing a lack of support networks and potential difficulties in rehabilitation, but did not raise any claims for protection under refugee or complementary protection grounds.

The Tribunal reasoned that the applicant's concerns about returning to New Zealand primarily related to the challenges of maintaining rehabilitation and establishing a new path, rather than a fear of serious or significant harm. Consequently, the Tribunal found that Australia's non-refoulement obligations did not carry significant weight in this instance. Despite the seriousness of the offending and the impact on victims, the Tribunal ultimately determined that the applicant's youth, his limited time in Australia before the offending, and the potential for rehabilitation were significant factors. The Tribunal concluded that the correct and preferable decision was to set aside the delegate's decision and substitute it with a decision to revoke the cancellation of the applicant's visa.