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

This matter concerned an appeal by the applicant, Mr Wilson, against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The applicant's visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the discretion to revoke the mandatory cancellation under section 501CA of the Act should be exercised.

The Tribunal considered various factors outlined in Direction No 79, including the protection and expectations of the Australian community, the best interests of minor children, the strength, nature, and duration of the applicant's ties to Australia, impediments to his settlement if removed, and the risk of harm from criminal gangs if returned to New Zealand. The Tribunal also had to assess the applicant's risk of re-offending, taking into account his criminal history, his explanations for his past conduct, his engagement with rehabilitation programs, and his expressed remorse and desire to change his ways.

In its reasoning, the Tribunal acknowledged the seriousness of the applicant's past offending, including convictions for break and enter and resisting arrest, and the significant custodial sentence imposed. However, it also gave weight to the applicant's detailed submissions regarding his strong family ties in Australia, including his wife and three daughters, his efforts at rehabilitation, and his concerns about personal safety if returned to New Zealand. The Tribunal noted that while primary considerations like community protection generally carry greater weight, "other considerations" can be afforded the greatest weight if they are outside the circumstances that generally apply.

Ultimately, the Tribunal set aside the delegate's decision not to revoke the visa cancellation. In substitution, the Tribunal revoked the cancellation of the applicant's visa, granting him one further opportunity to build an honest and productive life in Australia, while cautioning that future offending would likely result in significant consequences.