SWWC and Minister for Home Affairs (Migration)

This matter concerned an application to revoke the mandatory cancellation of the applicant's visa, which had been cancelled due to the applicant possessing a substantial criminal record. The applicant arrived in Australia as a dependent on his mother's spouse visa and had resided in Australia for approximately 23 years since 1995. The dispute before the Administrative Appeals Tribunal, presided over by K Millar SM, was whether the discretion to revoke the mandatory cancellation should be exercised.

The primary legal issues before the Tribunal were to determine whether the applicant met the criteria for revocation of the visa cancellation under section 501CA(4)(b) of the Migration Act 1958 (Cth). This involved assessing the strength, nature, and duration of the applicant's ties to Australia, including any positive contributions to the community, and considering whether there was "another reason" why the original decision to cancel the visa should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Act and guided by the principles set out in the relevant Direction.

The Tribunal reasoned that while the applicant had resided in Australia for a significant period, less weight should be given to this duration as his offending commenced within three years of his arrival. The Tribunal noted that many of his offences, such as trespass, stemmed from homelessness, but acknowledged an escalation to more serious offences like possessing prohibited drugs and resisting police from 1999. While the applicant had engaged in some work, including on a farm and in his mother's businesses, the Tribunal found that the time spent contributing to the community independently of family support was limited. The Tribunal applied the principles from the Direction, which emphasise Australia's sovereign right to determine who remains in the country and a low tolerance for criminal conduct, particularly by those who have only been in Australia for a short period or have offended soon after arrival.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa. The applicant did not pass the character test and therefore could not rely on section 501CA(4)(b)(i) for revocation. The Tribunal found no other compelling reason to revoke the cancellation under section 501CA(4)(b)(ii), concluding that the mandatory cancellation must stand.