Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned the application of a 52-year-old New Zealand citizen for the revocation of a mandatory visa cancellation. The applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, including convictions for possession of weapons, stolen property, and drug trafficking with intent to supply, for which he received a two-year prison sentence. A delegate of the Minister subsequently decided not to revoke this cancellation. The applicant sought review of this decision before the Tribunal. The Federal Court had previously found that the Tribunal had committed a jurisdictional error by failing to afford procedural fairness and by discounting a risk assessment without proper foundation, remitting the matter for redetermination.

The Tribunal was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the visa cancellation decision. In making this determination, the Tribunal was directed to consider Direction No 99, which outlines factors such as the protection of the Australian community, the nature and seriousness of offending, the risk of future offending, the strength of ties to Australia, the best interests of children, community expectations, and impediments to removal. The Tribunal also had regard to evidence presented at a prior hearing, including statements from the applicant's sister, fiancé, and daughter, as well as evidence submitted by the applicant himself.

In its reasoning, the Tribunal noted the absence of evidence of family violence, rendering that consideration irrelevant. It then assessed the strength, nature, and duration of the applicant's ties to Australia, acknowledging the significant adverse effect a non-revocation decision would have on his partner, step-children, sister, and two adult children residing in Australia. The Tribunal considered the applicant's long-term presence in Australia since 1995 and the familial relationships he maintained. However, the Tribunal ultimately affirmed the delegate's decision not to revoke the visa cancellation.