Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of a 58-year-old New Zealand citizen (the Applicant) whose visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent). The cancellation was based on the Applicant failing to pass the character test due to a substantial criminal record, specifically having been sentenced to a term of imprisonment of at least 12 months. The Applicant sought revocation of this decision, which was refused by the delegate, leading to the application for review by the Tribunal.

The primary legal issue before the Tribunal was whether to exercise the discretion to revoke the mandatory visa cancellation. This required the Tribunal to consider the "primary considerations" and "other considerations" as outlined in the relevant Direction, with a particular focus on the protection of the Australian community and the Applicant's ties to Australia. The Tribunal had to assess the nature and seriousness of the Applicant's extensive criminal history, which spanned approximately 40 years and included numerous driving offences, drug offences, resisting police, possessing a knife in public, and larceny.

In its reasoning, the Tribunal applied the principles set out in the Direction concerning the protection of the Australian community, noting the Government's commitment to preventing harm from criminal activity by non-citizens. It considered the Applicant's lengthy criminal record, which demonstrated a pattern of repeated offending over four decades, including serious offences. While acknowledging the Applicant's stated difficulties in his youth and his claims of providing care for a friend's son, the Tribunal found that these factors did not outweigh the significant risk posed to the Australian community by his criminal history. The Tribunal concluded that the Applicant's conduct to date was serious and that the risk of further offending remained.

Consequently, the Tribunal determined that it would not exercise its discretion to revoke the mandatory cancellation of the Applicant's visa. The decision under review, which affirmed the cancellation, was therefore affirmed by the Tribunal.