TCWY and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by TCWY (the applicant) to the Administrative Appeals Tribunal (the Tribunal) seeking to revoke the mandatory cancellation of his visa. The Minister for Immigration and Border Protection (the respondent) had cancelled the applicant's visa due to his substantial criminal record and failure to pass the character test. The applicant contended that the discretion to revoke the mandatory cancellation should be exercised in his favour.

The Tribunal was required to determine whether the discretion to revoke the mandatory visa cancellation should be exercised, considering the primary considerations outlined in Ministerial Direction No. 65. These considerations included the protection of the Australian community from criminal or other serious conduct, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the applicant's ties to Australia, the impediments to his removal, and any international non-refoulement obligations.

The Tribunal found that the applicant's conduct weighed heavily against the exercise of discretion in his favour. The applicant had a history of offending, starting with minor offences and escalating to more serious crimes, including attempted armed robbery and offences involving a taxi driver. The Tribunal noted a frequency and trend of increasing seriousness in his offending, which demonstrated a disregard for Australian law. While acknowledging the applicant's claims of extenuating circumstances, such as financial hardship and psychological issues, the Tribunal found his explanations for his criminal conduct, particularly the armed robbery and taxi driver offences, to be unconvincing. The Tribunal also noted that the applicant had reoffended after previously promising to be of good behaviour, and had not taken sufficient steps to address his underlying issues despite opportunities. The Tribunal was not satisfied that the applicant had established sufficient grounds to warrant the revocation of the mandatory visa cancellation.