Tollitt and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

The applicant, a citizen of the United Kingdom, sought judicial review of the Minister's decision to cancel his Class BB Subclass 155 Resident Return (Permanent) Visa. The cancellation was based on the applicant's failure to pass the character test, following his conviction in 2018 for indecent assault. The applicant contended that there was another reason why the mandatory visa cancellation should not have been made, and that Ministerial Direction No. 99 should have been applied in his favour. The matter was heard in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had established that there was another reason why the mandatory visa cancellation should be revoked, and if so, whether the Minister's delegate had erred in the exercise of discretion under Ministerial Direction No. 99. Specifically, the Tribunal had to consider the weight to be given to the applicant's offending conduct, the risk of reoffending, and the best interests of any children involved.

The Tribunal found that the applicant had indeed established another reason why the mandatory visa cancellation should be revoked, namely the significant rehabilitation efforts he had undertaken since his conviction, including participation in counselling and a demonstrated commitment to his family. The Tribunal then applied Ministerial Direction No. 99, which requires a balancing of factors including the protection of the Australian community, the best interests of children, and the applicant's character and ties to Australia. In weighing these factors, the Tribunal concluded that the applicant's rehabilitation and strong ties to Australia, coupled with the fact that his offending behaviour was not indicative of a persistent pattern, meant that revocation of the cancellation was warranted.

The Tribunal set aside the decision under review and substituted a decision to revoke the cancellation of the applicant's visa.