VKTT and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant, a New Zealand citizen who had resided in Australia since 2006, did not pass the character test due to a substantial criminal record, including numerous convictions in both New Zealand and Australia, some of which involved violence and resulted in periods of imprisonment.

The primary legal issue before the court was whether the delegate erred in refusing to revoke the visa cancellation, which required consideration of Ministerial Direction No 65. This Direction mandates that decision-makers assess various factors, including the protection of the Australian community, the best interests of minor children, non-refoulement obligations, and the strength and duration of ties to Australia, when determining whether to revoke a mandatory visa cancellation.

The court reasoned that the applicant's extensive criminal history, encompassing numerous violent offences and a significant period of imprisonment, weighed heavily against revocation, aligning with the Direction's emphasis on protecting the Australian community. While acknowledging the best interests of the applicant's minor children and potential non-refoulement obligations as considerations favouring revocation, the court found that these were outweighed by the seriousness of the applicant's conduct and the risk posed to the community. The court noted the applicant's failure to declare his criminal history upon arrival in Australia and his continued offending after receiving a warning.

Ultimately, the court affirmed the delegate's decision not to revoke the visa cancellation, concluding that the cumulative weight of the considerations, particularly the protection of the Australian community, supported the refusal to revoke the cancellation.