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

This matter concerned an appeal by WFVN (the applicant) against a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the respondent) not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 40-year-old Zambian citizen, had arrived in Australia ten years prior and was convicted of 'Stealing as a Servant', involving the theft of $148,061 from her former employer. This conviction led to the mandatory cancellation of her bridging visa under s 501(3A) of the Migration Act 1958 (Cth) due to her substantial criminal record. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation of her visa. In determining these issues, the Tribunal was required to consider the principles outlined in Direction No 79, including the protection of the Australian community, the nature and seriousness of the applicant's criminal offending, the risk of future harm to the community, the best interests of her Australian citizen son, community expectations, and the practical consequences of the cancellation decision, including the status of her valid protection visa application and non-refoulement obligations. The Tribunal also had to weigh the strength, nature, and duration of the applicant's ties to Australia against the impediments she would face if returned to Zambia, considering factors such as the impact of the COVID-19 pandemic.

The Tribunal reasoned that while the applicant's offending was serious, involving a significant sum of money and an abuse of trust, it was not in the category of the most serious crimes. The Tribunal accepted the applicant's submissions that she was a first offender, her offending was out of character, and she had faced difficult personal circumstances. Crucially, assessments from the sentencing judge, the Department of Justice, and a psychologist indicated an extremely low risk of reoffending. The Tribunal also noted that the practical consequence of not revoking the cancellation decision would be detention pending the determination of her protection visa application, rather than immediate removal. Considering these factors, alongside the applicant's strong ties to Australia, including her Australian citizen son and partner, and the potential impediments to her return to Zambia, the Tribunal concluded that there was another reason to revoke the cancellation decision.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the cancellation of the applicant's visa under s 501CA(4)(b)(ii) of the Migration Act.