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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of the United Kingdom who arrived in Australia as a child, had a substantial criminal record, including offences such as aggravated burglary, numerous drug possession offences, and breaches of court orders. The primary dispute revolved around whether the Applicant passed the character test under section 501(6) of the Migration Act, and if not, whether there was another reason to revoke the visa cancellation decision under section 501CA(4) of the Act. The Administrative Appeals Tribunal (AAT) was required to determine these issues.

The Tribunal was tasked with determining two key issues. Firstly, whether the Applicant met the criteria for passing the character test as defined by section 501(6) of the Migration Act, particularly in light of his substantial criminal record. Secondly, if the Applicant failed to pass the character test, the Tribunal had to consider whether it was satisfied that there was another reason to revoke the original decision to cancel his visa, as permitted by section 501CA(4) of the Migration Act. In considering this second issue, the Tribunal was guided by Direction No 99, which outlines various primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength and duration of ties to Australia, and the best interests of any minor children.

In its reasoning, the Tribunal noted that the Applicant had not committed any family violence offences, rendering that consideration irrelevant. The Tribunal then turned to the strength, nature, and duration of the Applicant's ties to Australia, acknowledging that Direction No 99 requires consideration of the impact on family members in Australia and gives more weight to ties to Australian citizen children. The Tribunal also considered the likely consequences of removal to the United Kingdom, including potential restrictions on re-entry to Australia. The Tribunal found that the Applicant had not raised, nor did the circumstances suggest, any non-refoulement obligations.

The Tribunal ultimately set aside the Reviewable Decision and substituted its own decision. This indicates that the delegate's decision not to revoke the visa cancellation was overturned, and a different outcome was reached by the Tribunal.