VCBP and Minister for Home Affairs (Migration)

This matter concerned an application by VCBP for review of a decision by the Minister for Home Affairs to refuse to revoke the mandatory cancellation of his visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because VCBP had been sentenced to a term of imprisonment exceeding 12 months. The central dispute revolved around whether there was "another reason" why the original decision to cancel the visa should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Act. The Administrative Appeals Tribunal (AAT) was required to consider this question in light of a new ministerial Direction, Direction No. 79, which commenced after the initial hearing but before the Tribunal's decision.

The legal issues before the Tribunal were whether VCBP passed the character test, and if not, whether there was another reason to revoke the visa cancellation decision. The Tribunal was obliged to comply with ministerial Direction No. 79, which had replaced the previously applicable Direction No. 65. This Direction outlined primary considerations, such as the protection of the Australian community, and other considerations, including international non-refoulement obligations and the strength of ties to Australia. The Direction stipulated that primary considerations should generally be given more weight than other considerations.

The Tribunal's reasoning focused on assessing VCBP's conduct against the criteria in Direction No. 79. It noted VCBP's extensive criminal history, comprising over 75 offences, and his repeated breaches of court orders, indicating a disregard for judicial authority. While acknowledging that many offences were cannabis-related, the Tribunal highlighted the seriousness of an armed robbery and two domestic assaults, finding that there had been a trend towards more serious offending. The Tribunal also considered the cumulative nature of his offending and whether he had re-offended after being warned about the consequences for his migration status. The Tribunal concluded that VCBP failed the character test and that, after weighing all relevant considerations under Direction No. 79, there was no other reason why the original visa cancellation decision should be revoked.