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

The Administrative Appeals Tribunal (the Tribunal) considered the decision of 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 32-year-old man who arrived in Australia at the age of 10, had a substantial criminal record, encompassing approximately 100 offences, including multiple driving offences and drug-related offending. He had previously received a written warning and had his visa cancelled before.

The Tribunal was required to determine whether the delegate's decision to refuse to revoke the mandatory visa cancellation was the correct or preferable decision. This involved assessing the applicant's character against the criteria set out in the Migration Act 1958 (Cth), particularly the character test, and considering the application of Direction No 79. The Tribunal had to weigh various primary and other considerations, including the protection of the Australian community, the nature and seriousness of the applicant's criminal offending, the risk posed to the Australian community, the best interests of the applicant's minor children, the expectations of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and the extent of impediments to his return to New Zealand. The impact of the COVID-19 pandemic was also a factor to be considered.

In its reasoning, the Tribunal applied the principles outlined in Direction No 79, which mandates that protection of the Australian community is a paramount consideration. The Tribunal found that the applicant's extensive criminal history, including drug offences and a significant number of other convictions, demonstrated a serious and ongoing disregard for the law. While acknowledging the applicant's ties to Australia and the potential impact on his minor children, the Tribunal concluded that these factors were outweighed by the need to protect the Australian community from further offending. The Tribunal found that the risk posed by the applicant to the community was substantial and that the expectations of the Australian community regarding the character of non-citizens with serious criminal records were not met. The Tribunal affirmed the delegate's decision.