Te Waiti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 37-year-old New Zealand citizen who had resided in Australia since the age of three, had a substantial criminal record. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the visa cancellation.

The primary legal issues before the Tribunal were whether the applicant satisfied the character test under section 501(6) of the Migration Act 1958 (Cth), and if he did not, whether there was "another reason" to revoke the cancellation decision under section 501CA(4) of the Act. The applicant accepted that he did not pass the character test due to his substantial criminal record, which included convictions for aggravated armed robbery and drug offences, resulting in sentences of imprisonment totalling 12 months or more. Therefore, the central question became whether the power to revoke the cancellation should be exercised.

In considering whether there was another reason to revoke the cancellation, the Tribunal had regard to Direction No 90, which outlines primary and other considerations. The Tribunal assessed the protection of the Australian community, including the nature and seriousness of the applicant's conduct and the risk of further offending. It also considered other relevant factors such as the best interests of minor children and the strength, nature, and duration of the applicant's ties to Australia. The Tribunal noted the applicant's lengthy period of residence in Australia, his family ties, and his efforts towards rehabilitation.

The Tribunal found that while the applicant did not pass the character test, there were compelling reasons to revoke the cancellation decision. It was satisfied that the best interests of the applicant's minor children were a significant consideration, as was the extent of impediments to his removal from Australia. The Tribunal concluded that the cumulative weight of these factors, when balanced against the seriousness of his past offending and the risk of future offending, constituted "another reason" why the visa cancellation should be revoked. Accordingly, the Tribunal set aside the delegate's decision and substituted a decision to revoke the cancellation of the applicant's visa.