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

This matter concerned an application by Mr. Tereva, a New Zealand citizen, to revoke the mandatory cancellation of his visa. The cancellation was triggered by his conviction for driving while disqualified and with an excess blood alcohol level. Mr. Tereva had resided in Australia since he was 16 years old and was 57 at the time of the hearing. The dispute before the Administrative Appeals Tribunal (AAT) was whether to affirm the visa cancellation decision or substitute it with a decision to revoke the cancellation.

The Tribunal was required to determine whether to exercise the discretion to revoke the mandatory visa cancellation, applying Direction 79 issued under section 499 of the Migration Act 1958. This involved considering the primary considerations outlined in Part C of the Direction, namely the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant considerations specific to Mr. Tereva's circumstances.

The Senior Member reasoned that while Mr. Tereva had a lengthy criminal history dating back to the early 1980s, his most recent offending was unusual and the risk of reoffending was very low. Crucially, the Tribunal accepted evidence that Mr. Tereva provided essential assistance to his elderly parents, who relied on him due to their own health issues and the commitments of their other children. This reliance, coupled with Mr. Tereva's stable employment and lack of a partner or minor children, weighed in favour of revocation. The Tribunal found that the protection of the Australian community did not necessitate the cancellation of Mr. Tereva's visa in these specific circumstances.

The Tribunal set aside the decision under review and substituted a decision that the mandatory cancellation of Mr. Tereva’s visa be revoked.