Ward and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of a 53-year-old United Kingdom citizen whose visa was mandatorily cancelled due to a substantial criminal record. The applicant arrived in Australia in 1987 and was granted a permanent visa in 1994. Between 1996 and 2016, he accumulated over 20 convictions, including serious offences of assault with intent to rob armed with an offensive weapon and reckless wounding, for which he received a sentence of five years and three months imprisonment. A delegate of the Minister for Home Affairs initially cancelled the applicant's visa under section 501(3A) of the Migration Act 1986 (Cth) because he had been sentenced to at least 12 months imprisonment. The delegate subsequently refused to revoke this cancellation.

The Tribunal was required to determine whether to exercise the discretion to revoke the mandatory visa cancellation. This involved assessing the primary considerations outlined in the relevant Direction, specifically the protection of the Australian community, and considering any other relevant factors. The Tribunal had to evaluate the nature and seriousness of the applicant's conduct to date and the risk to the Australian community should he commit further offences.

In its reasoning, the Tribunal applied the principles set out in the Direction concerning the protection of the Australian community, emphasising that remaining in Australia is a privilege for non-citizens who are law-abiding and do not cause harm. The Tribunal considered the applicant's extensive criminal history, noting the frequency and cumulative effect of his offending, as well as the seriousness of the offences, particularly those involving violence. The Tribunal also had regard to the applicant's personal circumstances, including his family in the UK and his estranged children in Australia, and his stated regret and attempts at rehabilitation. However, the Tribunal found that the seriousness of the offending, particularly the violent nature of the subject offending, and the risk posed to the community outweighed the mitigating factors.

Consequently, the Tribunal decided not to exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review, which affirmed the mandatory cancellation, was therefore affirmed.