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

This matter concerned an application by Mr Rogers for review of the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The cancellation was effected under section 501(3A) of the Migration Act 1958 (Cth) due to Mr Rogers having a substantial criminal record and serving a sentence of imprisonment. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The decision was made by K Millar SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mr Rogers' visa was correctly cancelled under section 501(3A) of the Act, and if so, whether the discretion to refuse to grant the visa should be exercised, or alternatively, whether the cancellation should be revoked. This involved considering the application of Ministerial Direction No. 90, which outlines the principles and considerations to be applied when determining whether to revoke a mandatory visa cancellation.

The Tribunal found that Mr Rogers' visa was correctly cancelled under section 501(3A) as he was serving a full-time sentence of imprisonment in a custodial institution at the time of notification of cancellation. In considering whether to revoke the cancellation, the Tribunal applied Ministerial Direction No. 90, focusing on the primary considerations including the protection of the Australian community, family violence, the best interests of minor children, and community expectations, as well as other considerations such as impediments to removal and links to the Australian community. The Tribunal specifically noted that the offences for which Mr Rogers was convicted included acts of family violence, which are viewed very seriously. Despite the serious nature of the offending, the Tribunal ultimately determined that the cancellation of Mr Rogers' visa should be revoked.

The Tribunal set aside the decision to cancel Mr Rogers' visa and substituted it with a decision to revoke the cancellation under section 501CA(4) of the Act.