Robertson and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant, Robertson, to revoke the mandatory cancellation of his Class BB (Subclass 155) Resident Return visa. The cancellation had been based on the Applicant failing to pass the character test. The Minister for Home Affairs, represented by the Respondent, had refused to revoke the cancellation. The case was heard by Senior Member M Griffin QC.

The primary legal issue before the Tribunal was whether there was another reason why the cancellation of the Applicant's visa should be revoked, applying Ministerial Direction No. 65. This involved weighing several primary considerations, including the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal also considered other factors such as the strength, nature, and duration of the Applicant's ties to Australia and the extent of impediments he would face if removed.

The Tribunal reasoned that while the Applicant's past offending, including domestic violence, was serious, it was situational and unlikely to be repeated given his changed circumstances and cessation of the relationship with the victim. The Tribunal found the Applicant to be at minimal risk of re-offending. Crucially, the Tribunal determined that the best interests of the Applicant's minor daughter weighed most heavily in favour of revoking the visa cancellation. This consideration, combined with the significant length of time the Applicant had resided in Australia, outweighed all other contrary considerations.

Consequently, the Tribunal set aside the decision of the Respondent not to revoke the visa cancellation and, in substitution, revoked the cancellation of the Applicant's Class BB (Subclass 155) Resident Return visa.