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

This matter concerned an application by a 24-year-old New Zealand citizen, who had resided in Australia since the age of 14, for the revocation of a mandatory visa cancellation. The applicant's visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) after he was sentenced to 14 months imprisonment for possession of stolen or unlawfully obtained property. A delegate of the Minister subsequently decided not to revoke the cancellation. The Administrative Appeals Tribunal was required to determine whether to exercise its power under section 501CA(4) of the Act to revoke the cancellation.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by section 501 of the Act, and if not, whether there was another reason why the mandatory cancellation decision should be revoked. The Tribunal was guided by Ministerial Direction 79, which outlines the considerations for visa refusal, cancellation, and revocation decisions. This direction requires decision-makers to consider primary and other considerations, with primary considerations generally carrying greater weight.

The Tribunal found that the applicant did not pass the character test because he had a substantial criminal record, defined by section 501(7)(c) of the Act as having been sentenced to a term of imprisonment of 12 months or more. Consequently, the sole remaining issue was whether there was another reason to revoke the cancellation under section 501CA(4)(b)(ii). The Tribunal noted that when considering the protection of the Australian community, decision-makers must have regard to the principle that the government is committed to protecting the community from harm, and that remaining in Australia is a privilege for non-citizens who are law-abiding. The Tribunal also considered the nature and seriousness of the applicant's conduct and the risk to the Australian community should he commit further offences.

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