TGDR and Minister for Home Affairs (Migration)

This matter concerned an application for review by an Italian national, the applicant, of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of his visa. The applicant's visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he failed the character test due to having a substantial criminal record, stemming from convictions in 2018 for historical sexual offences committed in 1973 and 1974. The Administrative Appeals Tribunal was tasked with determining whether there was "another reason" to revoke the cancellation decision.

The central legal issue before the Tribunal was whether, in light of all relevant considerations, including those outlined in Part C of Direction No. 79, there existed a sufficient reason to revoke the mandatory visa cancellation. This involved balancing the protection of the Australian community from criminal conduct against other factors, such as the best interests of minor children in Australia and the applicant's strong ties to the Australian community. The Tribunal was required to consider the principles set out in the Direction, which emphasise Australia's sovereign right to determine who remains in the country and the expectation that non-citizens will be law-abiding.

The Tribunal applied the principles of Direction No. 79, noting that while the applicant's criminal offending was serious, particularly given its nature and the age of the victim, the Tribunal was satisfied that the applicant had resided in Australia for most of his life since 1968. The Tribunal also considered the significant impediments the applicant would face if returned to Italy, his strong family ties in Australia, including adult children and minor grandchildren, and the absence of any other criminal conduct. The Tribunal concluded that these factors, when weighed against the protection of the Australian community, constituted "another reason" to revoke the cancellation decision.

The Tribunal ordered that the decision not to revoke the cancellation of the applicant's visa be set aside and that the cancellation of the applicant's visa be revoked.