NBCM and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of NBCM and the Minister for Home Affairs concerning the cancellation of a Class TY Subclass 444 Special Category visa. The applicant failed to pass the character test due to a substantial criminal record, including multiple terms of imprisonment totalling 12 months. The central dispute revolved around whether the discretion to cancel the applicant's visa should be exercised, particularly in light of Direction 65, which outlines considerations for such decisions.

The Tribunal was required to determine the weight to be given to various considerations under Direction 65, including the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children affected by the decision, and the expectations of the Australian community. Specifically, the Tribunal had to assess the nature and seriousness of the applicant's past conduct and the risk of future offending, as well as the impact of visa cancellation on his two minor children and his grandchildren.

In its reasoning, the Tribunal applied the principles outlined in Direction 65, noting that primary considerations should generally be given greater weight. It found that the applicant's extensive criminal history, spanning convictions in both Australia and New Zealand, weighed heavily in favour of cancelling his visa, citing the need to protect the Australian community. While acknowledging the applicant's close and loving relationship with his two youngest children and his grandchildren, and the independent evidence supporting his positive parental role, the Tribunal considered that this primary consideration should be afforded minimal weight. This was due to the not insignificant risk of re-offending and the applicant's past conduct, including witnessing domestic violence, which the Tribunal considered could only be a neutral factor.

The Tribunal affirmed the decision to cancel the applicant's visa.