Werner and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by Werner (the applicant) to the Administrative Appeals Tribunal for review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to mandatorily cancel his visa. The cancellation was based on the applicant failing to pass the character test due to multiple driving offences, domestic violence assault offences, and being an accessory after a robbery. The Tribunal was required to consider the protection of the Australian community, the best interests of the applicant's minor children in Australia, the expectations of the Australian community, the strength, nature and duration of the applicant's ties to Australia, the impact on victims, and the extent of impediments the applicant might face if removed from Australia.

The Tribunal was required to determine whether to revoke the mandatory cancellation of the applicant's visa, having regard to the considerations outlined in Direction No. 79. This included assessing any non-refoulement obligations, the strength and nature of the applicant's ties to Australia, the impact on Australian business interests, the impact on victims of the applicant's criminal behaviour, and the extent of impediments to re-establishing himself in his home country. The Tribunal also had to weigh these factors against the seriousness of the applicant's offending conduct.

The Tribunal reasoned that while the applicant's offences were serious and there was a limited risk of re-offending, the best interests of his minor children in Australia were the most significant consideration. This factor was found to outweigh all contrary considerations. Consequently, the Tribunal set aside the delegate's decision not to revoke the cancellation and, in substitution, revoked the mandatory cancellation of the applicant's visa.