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

The Administrative Appeals Tribunal reviewed a decision not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was initiated because the Applicant had a substantial criminal record, having been sentenced to an aggregate term of imprisonment of four years and three months. The Applicant accepted that he did not pass the character test but contended that there was another reason why the visa cancellation decision should be revoked.

The Tribunal was required to determine whether it was satisfied that the Applicant passed the character test or, alternatively, that there was another reason why the mandatory cancellation of his visa should be revoked. In conducting this review, the Tribunal was bound by Direction 90, which outlines the principles and considerations to be applied in such cases, including primary considerations such as the protection of the Australian community, family violence, the best interests of minor children in Australia, and the expectations of the Australian community, as well as other considerations.

The Tribunal reasoned that while the Applicant did not pass the character test, it was satisfied that there was another reason to revoke the cancellation decision. In reaching this conclusion, the Tribunal considered the various factors outlined in Direction 90, including the best interests of the Applicant's nieces and nephews residing in Australia, which it found weighed in favour of revocation, albeit minimally. The Tribunal also considered the expectations of the Australian community, noting that while serious crimes against vulnerable members of the community would lead to an expectation of visa cancellation, the specific circumstances of the case warranted a different outcome.

Ultimately, the Tribunal found that there was another reason why the mandatory cancellation of the Applicant's visa should be revoked. Consequently, the Tribunal set aside the decision not to revoke the cancellation and substituted a new decision revoking the cancellation of the Applicant's visa.