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

This matter concerned an application by the Applicant, a citizen of New Zealand, for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of his visa. The Applicant had a substantial criminal record, including offences involving prohibited drugs, dishonesty, property, and contravention of a domestic violence order. The review was before the Tribunal following a successful judicial review in the Federal Court, which had quashed a previous Tribunal decision affirming the cancellation and remitted the matter for redetermination.

The Tribunal was required to determine two issues: first, whether the Applicant passed the character test as defined by section 501(6) of the Migration Act; and second, if he did not pass the character test, whether there was another reason to revoke the visa cancellation decision under section 501CA(4) of the Migration Act. In considering the second issue, the Tribunal was directed to apply Direction No 99, which outlines primary and other considerations, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk to the community, family violence, the strength, nature, and duration of the Applicant's ties to Australia, the best interests of his minor children, community expectations, the legal consequences of the decision, impediments to removal, and the impact on victims and Australian business interests.

In its reasoning, the Tribunal considered the Applicant's substantial criminal record and the seriousness of his conduct, including family violence, which weighed against revocation. However, it also gave significant weight to the Applicant's strong ties to Australia, particularly through his two minor children who are Australian citizens, and the potential practical and financial detriment to their mother if the Applicant were removed. The Tribunal noted that the previous Tribunal's findings on the seriousness of the family violence lacked logical justification, as identified by the Federal Court. After balancing these competing considerations, the Tribunal found that the primary consideration of the protection of the Australian community weighed slightly against revocation, but the strength of the Applicant's ties to Australia, particularly his children, was a significant factor favouring revocation.

The Tribunal ultimately set aside the delegate's decision and substituted a new decision revoking the cancellation of the Applicant's visa.