Wikotu 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 Subclass 444 Special Category (Temporary) visa. The applicant, a New Zealand citizen who had been in Australia since 2009, had his visa mandatorily cancelled under s 501(3A) of the Migration Act 1958 after being convicted of robbery with actual violence and sentenced to four years and six months imprisonment. He subsequently requested revocation of the cancellation, but this was refused by the Minister's delegate. The applicant then sought review of that refusal by the Tribunal.

The primary legal issue before the Tribunal was whether the discretion under s 501CA(4) of the Act should be exercised to revoke the mandatory visa cancellation. In determining this, the Tribunal was required to consider whether the applicant passed the "Character Test" as defined in s 501 of the Act, or whether there was another reason justifying revocation. The Tribunal was guided by principles set out in Paragraph 6.3 of the Direction, which included Australia's sovereign right to determine who remains in the country, community expectations regarding serious offenders, and the low tolerance for criminal conduct by non-citizens.

The Tribunal's reasoning focused on assessing the nature and seriousness of the applicant's conduct, the risk to the Australian community, and other relevant considerations. It noted that violent crimes are viewed seriously, and the sentence imposed by the courts is a significant factor. While acknowledging certain countervailing factors presented by the applicant, the Tribunal found that these did not outweigh the primary considerations favouring non-revocation, particularly the protection of the Australian community from criminal conduct.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal concluded that the considerations favouring non-revocation outweighed those favouring revocation, and therefore the discretion to revoke was not exercised.