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

This matter concerned an application by RTTW, a citizen of New Zealand and Samoa, for the revocation of the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on RTTW failing to pass the character test due to his substantial criminal record, specifically a conviction for intentionally causing serious injury and two counts of intentionally causing injury, for which he received a total sentence of five years imprisonment with a non-parole period of three years. The Administrative Appeals Tribunal was tasked with determining whether there was "another reason" to revoke this mandatory cancellation.

The primary legal issues before the Tribunal were to assess whether RTTW's visa cancellation should be revoked, considering the factors outlined in Ministerial Direction No. 79. This involved weighing the "primary considerations" of protecting the Australian community, the best interests of any minor children affected by the decision, and the expectations of the Australian community. The Tribunal was also required to consider "other relevant considerations," including the impact on victims, the strength and nature of RTTW's ties to Australia, and any impediments to his removal.

In its reasoning, the Tribunal found that RTTW did not pass the character test under section 501(3A)(a) of the Migration Act 1958 (Cth) due to his sentencing for serious offences. The Tribunal then applied Ministerial Direction No. 79, categorising RTTW's offending into three parts: lower-end motor vehicle and property offences, unlawful assault against his partner (which involved violence against a woman and exposure of children to such violence), and premeditated violent offending resulting in severe injuries to a victim. The Tribunal concluded that the seriousness of this offending, particularly against innocent members of the community, weighed heavily against revoking the visa cancellation. While acknowledging RTTW's strong bond with his daughters and regular contact with his children, the Tribunal also noted evidence suggesting that responsible agencies had previously determined it was not in the children's best interests to reside with their father, a factor that disadvantaged the Tribunal's assessment.

The Tribunal affirmed the mandatory cancellation of RTTW's visa, finding that the primary considerations, particularly the protection of the Australian community from serious violent offending, outweighed any factors favouring revocation.