Wilton and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an appeal by the applicant, Wilton, against the Minister for Immigration, Citizenship and Multicultural Affairs' decision to cancel his visa. The dispute arose from the applicant failing to pass the character test due to his criminal history, which included numerous convictions for offences such as common assault (domestic violence), destroying or damaging property (domestic violence), and driving offences. The applicant sought to have the visa cancellation revoked, arguing that there was another reason why it should be revoked. The case was heard by Deputy President Antoinette Younes.

The court was required to determine whether the Minister's decision to cancel the applicant's visa was lawful, particularly in light of Ministerial Direction No. 99, which outlines considerations for visa cancellation and revocation. Key legal issues included the nature and seriousness of the applicant's offending conduct, the protection of the Australian community, the strength and duration of the applicant's ties to Australia, the best interests of his minor children, the expectations of the Australian community, and any impediments to his removal. The court also had to consider the principle that a higher level of tolerance may be afforded to non-citizens who have lived in Australia for most of their lives, including their formative years.

The Deputy President reasoned that while decision-makers are bound to consider the factors set out in Ministerial Direction No. 99, they are not limited to those considerations. The Direction provides guidance on the relative weight of considerations but does not prescribe a formulaic approach. The Deputy President noted the applicant's extensive criminal history, including multiple convictions for family violence offences, and acknowledged the community's expectation that individuals engaging in such conduct should not hold a visa. However, the Deputy President also gave significant weight to the applicant having lived in Australia for most of his life and from a very young age, which, according to the Direction, warrants a higher level of tolerance. Furthermore, the best interests of the applicant's four minor children were considered a primary consideration weighing heavily in favour of revocation, as were his strong ties to Australia and the impact on his family members. Despite the seriousness of the offences and the risk of reoffending, the Deputy President was satisfied that the cumulative evidence in favour of revocation outweighed the aspects against it.

Consequently, the Deputy President set aside the decision to cancel the applicant's visa and substituted a decision to revoke the cancellation.