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

The applicant, a citizen of New Zealand who had resided in Australia for approximately 20 years, sought review of a delegate's decision to mandatorily cancel his visa. The cancellation was triggered by his conviction in May 2021 for a series of assaults, wilful damage, and other offences, for which he received a 12-month prison sentence. The applicant did not dispute that he failed the character test due to his substantial criminal record, as defined by the Migration Act 1958 (Cth). The sole issue before the Tribunal was whether there was another reason to revoke the visa cancellation decision under section 501CA(4)(b)(ii) of the Act.

The Tribunal was required to determine if it was satisfied that another reason existed to revoke the mandatory visa cancellation. In making this determination, the Tribunal was bound by Direction No. 90, which outlines the primary considerations to be assessed. These included the protection of the Australian community from criminal or serious conduct, whether the conduct involved family violence, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the applicant's links to the Australian community.

In its reasoning, the Tribunal found that the best interests of the applicant's two minor children, who were living with their mother in Australia, provided powerful support for revoking the cancellation. The Tribunal noted the children's desire for their father to remain in Australia and the mother's expressed intention to follow the applicant to New Zealand with the children, which indicated a strong family relationship. The Tribunal considered this factor to be a significant consideration in favour of revocation, despite the respondent's submissions suggesting it had minimal overall effect. The Tribunal also considered the applicant's substantial links to the Australian community, having resided there for most of his life.

Ultimately, the Tribunal was satisfied that the best interests of the minor children and the applicant's strong ties to Australia constituted another reason why the original decision to cancel the visa should be revoked. Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory visa cancellation.