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

This matter concerned an application to the Administrative Appeals Tribunal for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a New Zealand citizen who had resided in Australia since the age of 17, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, including convictions for aggravated armed robbery and aggravated home burglary, for which he was serving a full-time custodial sentence.

The Tribunal was required to determine two primary issues: firstly, whether the applicant passed the character test as defined by section 501(6) of the Migration Act, and secondly, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked. In considering these issues, the Tribunal was guided by Direction No 99, which outlines the primary and other considerations relevant to such decisions, including the protection of the Australian community, the nature and seriousness of the offending conduct, the risk of future offending, the strength and duration of ties to Australia, the best interests of any children, community expectations, and impediments to removal.

The Tribunal's reasoning focused on weighing the various considerations under Direction No 99. It acknowledged the applicant's significant ties to Australia, including his long period of residence, completion of secondary education, and the existence of family members, including a son. However, the Tribunal placed considerable weight on the seriousness and nature of the applicant's criminal offending, particularly the aggravated offences, and the associated risk to the Australian community. The Tribunal found that these factors, when balanced against the other considerations, did not provide a sufficient reason to revoke the visa cancellation decision. Consequently, the Tribunal affirmed the delegate's decision not to revoke the cancellation.