Soloai (Migration)

This matter concerned an application for review of a decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa. The applicant was a New Zealand citizen who had a significant criminal history in New Zealand, including convictions for robbery and burglary, for which he had received sentences of imprisonment of at least one year. The applicant conceded that he was a "behaviour concern non-citizen" as defined by the Act.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Special Category visa, specifically in light of his status as a behaviour concern non-citizen. The Tribunal was required to consider the provisions of section 32(2) of the Act and Regulation 5.15A, which outline the circumstances under which a person might be considered for such a visa despite being a behaviour concern non-citizen.

The Tribunal's reasoning focused on the applicant's criminal history and the resulting classification as a behaviour concern non-citizen. It noted that Regulation 5.15A(2) provides an exception for individuals who are behaviour concern non-citizens solely due to exclusion from another country in circumstances not warranting exclusion from Australia, which the applicant did not satisfy. Regulation 5.15A(3) outlines a complex process involving visa cancellation, representations, revocation of cancellation, and the absence of new grounds for being a behaviour concern non-citizen, none of which were applicable to the applicant's situation. Consequently, the Tribunal found that the applicant did not satisfy the requirements of section 32(2)(a)(ii) of the Act.

The Tribunal affirmed the decision not to grant the applicant the visa. However, it referred the case to the Department for the Minister's attention and respectfully recommended that the Minister exercise discretionary powers pursuant to section 351 of the Act.