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

This matter concerned an application by a New Zealand citizen, Mr Oldbury, for review of a decision not to exercise the discretion to cancel his subclass 444 Special Category visa under section 501(2) of the Migration Act 1958 (Cth). The applicant had failed to pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the discretion to cancel the visa should have been exercised, considering the relevant provisions of Direction No. 90.

The Tribunal was tasked with assessing various considerations under Direction No. 90, including the protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, the best interests of minor children affected by the decision, and the extent of impediments the applicant might face if removed from Australia. The Tribunal also had to consider the applicant's personal circumstances, including his long residence in Australia since childhood, his diagnosed ADHD, his rehabilitation efforts, his new relationship, and his strong employment record as a licensed electrician and business owner.

In its reasoning, the Tribunal found that the applicant's offending, which occurred as a young person and related to family violence over a discrete period, fell at the lower end of the scale and did not weigh heavily against him. The Tribunal gave significant weight to the best interests of the applicant's biological son and numerous nieces and nephews, noting evidence of his positive and caring relationship with his son. Furthermore, the Tribunal considered the substantial financial disruption and challenges the applicant would face if removed from Australia, including potential difficulties in re-establishing his electrical contracting business and the depletion of his financial resources. While acknowledging that community expectations and potential impediments to re-establishment in New Zealand weighed moderately against cancellation, these factors were not considered decisive.

Ultimately, the Tribunal set aside the decision under review. It concluded that the cumulative weight of the considerations, particularly the best interests of the minor children and the significant impediments to re-establishment in New Zealand, supported a decision not to cancel the applicant's visa.