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

This matter concerned an application by the Applicant to the Tribunal to revoke a mandatory visa cancellation decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Applicant, who had arrived in Australia as a child and had a significant criminal history including convictions for stealing, break and enter, and assault occasioning actual bodily harm, had failed to pass the character test. The Tribunal was required to determine whether there was "another reason" why the mandatory visa cancellation decision should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to consider the primary considerations and other considerations as outlined in Direction 90. The primary considerations included the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal also had to consider other factors such as impediments to removal from Australia, the impact on victims, and the Applicant's links to the Australian community. In assessing the protection of the Australian community, the Tribunal was directed to consider the nature and seriousness of the Applicant's conduct, including violent crimes, acts of family violence, the frequency and cumulative effect of offending, and whether the Applicant had re-offended after being warned about migration consequences.

The Tribunal found that the Applicant did not satisfy the character test, and therefore section 501CA(4)(b)(i) of the Act could not be invoked to revoke the mandatory visa cancellation decision. The Tribunal then proceeded to consider whether there was "another reason" under section 501CA(4)(b)(ii) for revocation. In doing so, it was required to apply the principles and considerations set out in Direction 90. The Tribunal's reasoning focused on the Applicant's criminal history, including acts of family violence, and the general community expectation that individuals who engage in serious criminal conduct should not be permitted to remain in Australia. The Tribunal also considered the Applicant's links to the Australian community and the potential impact of removal. The decision affirmed the mandatory visa cancellation.