VFQY and Minister for Home Affairs (Migration)

This matter concerned an application by VFQY (the applicant) to the Administrative Appeals Tribunal (the Tribunal) for the revocation of the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The applicant, a citizen of the United Kingdom, had conceded that he did not pass the character test due to a substantial criminal record, including a sentence of more than 12 months imprisonment. The Minister for Home Affairs (the respondent) had cancelled the applicant's visa on character grounds.

The Tribunal was required to determine whether there was another reason why the mandatory cancellation of the applicant's visa should be revoked. This involved assessing the risk to the Australian community should the applicant reoffend, the expectations of the Australian community regarding non-citizens who commit serious crimes, and the weight to be given to countervailing considerations such as the applicant's significant and positive family ties to Australia and the extent of impediments he would face if removed to the United Kingdom.

In its reasoning, the Tribunal applied the principles outlined in paragraph 6.3 of the relevant Direction, which emphasise Australia's sovereign right to determine who remains in the country and the community's expectation that serious offenders will be refused entry or have their visas cancelled. However, the Tribunal also considered that Australia may afford a higher level of tolerance for criminal conduct in relation to a non-citizen who has lived in the Australian community from a very young age. The Tribunal found the applicant's offending to be objectively serious, involving threats, violence, and drug proliferation over a sustained period, which would pose a significant risk if repeated. Despite this, the Tribunal gave considerable weight to the applicant's long-standing ties to Australia, having arrived as a child and having no memory of his time in Egypt.

Ultimately, the Tribunal determined that the correct and preferable decision was to revoke the mandatory cancellation of the applicant's visa. The Tribunal set aside the decision under review and substituted it with a decision to revoke the mandatory cancellation under section 501CA of the Migration Act 1958 (Cth).