Waghorn and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the applicant failing to pass the character test due to having a substantial criminal record. The applicant sought to have this mandatory cancellation decision revoked.

The Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation of the applicant's visa, considering the provisions of Ministerial Direction No. 99. This involved assessing the nature and seriousness of the applicant's criminal offending and other conduct, as well as other primary and other considerations outlined in the Direction.

The Tribunal's reasoning focused on paragraph 8.1.1(1) of Ministerial Direction No. 99, which sets out factors to consider when assessing criminal offending. The Tribunal noted that subparagraph 8.1.1(1)(a) specifies that certain types of crimes, including violent and sexual crimes, crimes against women or children, and acts of family violence, are viewed very seriously by the Australian government and community. The applicant's criminal history was found to fall squarely within these categories. Applying a holistic view of the evidence relevant to the primary and other considerations in the Direction, the Tribunal concluded that these factors favoured affirming the delegate's decision.

Consequently, the Tribunal affirmed the decision made by the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 3 July 2023, to not revoke the cancellation of the applicant's visa.