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

This matter concerned an appeal by Mr S against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his visa. The Administrative Appeals Tribunal (AAT) was required to determine whether to revoke this cancellation. Mr S, born in China in 1966, had resided in Australia since 2009, initially sponsored by his first wife. After his first marriage ended, he met and married his second wife, Ms S, in China in 2016, and she subsequently emigrated to Australia. Mr S had a consistent employment history in Australia and a minimal criminal record, with a single conviction in 2014 for failing to provide personal details after a minor traffic incident, for which he received a fine.

The primary legal issue before the Tribunal was whether to revoke the mandatory cancellation of Mr S's visa, which required the application of Direction 90. This Direction mandates decision-makers to consider specific principles when exercising discretion regarding visa cancellation. These principles include the expectation that non-citizens in Australia are law-abiding, respect institutions, and do not cause harm. The Direction also states that non-citizens engaging in serious misconduct should expect to forfeit their privilege to remain in Australia, and that the community expects visas to be cancelled for conduct raising serious character concerns, irrespective of measurable risk. Furthermore, the Direction acknowledges a lower tolerance for misconduct by those with short periods of residency, while extending a higher level of tolerance to those who have lived in Australia for most of their lives or from a young age. The Tribunal also noted that the nature of certain conduct, such as family violence, can be so serious that even strong countervailing considerations may be insufficient to warrant revocation.

The Tribunal, hearing the matter afresh, applied Direction 90 and considered the principles outlined within it. It acknowledged that its role was to make its own findings of fact and determine the correct or preferable decision based on the evidence before it. The Tribunal found that Mr S had a genuine love for his second wife and a desire to start a family, and that he had a continuous and positive work history in Australia. While acknowledging serious convictions that had occurred in 2017 involving an assault on Ms S, the Tribunal ultimately decided to set aside the delegate's decision to cancel Mr S's visa and substituted a decision revoking the cancellation.