Va'a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal (the Tribunal) considered the case of a New Zealand citizen whose visa was mandatorily cancelled. The applicant sought the revocation of this cancellation, arguing that there were other reasons to allow him to remain in Australia. The Tribunal's decision was made by P.q. Wood SM.

The central legal issue before the Tribunal was whether to exercise its discretion to revoke the mandatory cancellation of the applicant's visa. This required the Tribunal to assess the applicant's character, taking into account his criminal history, and to weigh this against other relevant considerations, including the best interests of any minor children and the protection of the Australian community. The Tribunal was guided by Direction 90, which outlines primary and other considerations for such decisions.

In its reasoning, the Tribunal applied the principles that Australia has a sovereign right to determine who remains in the country and that non-citizens engaging in serious conduct should expect to forfeit their privilege to stay. The Tribunal noted the applicant's drug use and driving offences, which commenced in 2018, and his subsequent criminal convictions, including those for which he received custodial sentences. The Tribunal considered the primary considerations of protecting the Australian community, the best interests of minor children, and the expectations of the Australian community, as well as other considerations such as the extent of impediments to removal and the applicant's links to the Australian community. Despite acknowledging the applicant's long residence in Australia, the Tribunal found that his criminal conduct was sufficiently serious to warrant affirming the mandatory cancellation.

Consequently, the Tribunal did not exercise its discretion to revoke the mandatory cancellation of the applicant's visa and affirmed the decision under review.