WSML and Minister for Home Affairs (Migration)

This matter concerned an application to review the cancellation of the applicant's visa. The applicant conceded that he did not pass the character test due to a substantial criminal record, which included domestic violence and driving offences. The core of the dispute was whether the discretionary power to cancel the applicant's visa under section 501(2) of the *Migration Act 1958* (Cth) should be exercised. The Administrative Appeals Tribunal (AAT), acting in the place of the original decision-maker, was tasked with considering the relevant primary and other considerations outlined in Direction No. 65.

The Tribunal was required to determine several legal issues, including the weight to be given to the best interests of the applicant's unborn child, the expectations of the Australian community regarding non-citizens obeying Australian laws and committing serious crimes, and the protection of the Australian community from harm. This involved assessing the nature and seriousness of the applicant's past offending, the risk of future criminal conduct, and the strength, nature, and duration of the applicant's ties to Australia, including his Aboriginal descent and the impediments he might face if returned to New Zealand.

In its reasoning, the Tribunal noted that the interests of an unborn child are not considered a primary consideration regarding the best interests of a child, but would be considered in relation to the strength of ties to Australia. The Tribunal also addressed the "expectations of the Australian community" consideration, referencing case law that indicated this consideration is largely defined by government policy and is generally adverse to applicants who have failed the character test and been convicted of serious crimes. The Tribunal's analysis of the protection of the Australian community involved considering the nature and seriousness of the applicant's conduct, including factors such as the type of offences, sentences imposed, frequency of offending, and any trend of increasing seriousness.

Ultimately, the Tribunal found that the decision under review, which cancelled the applicant's visa, should be set aside. A new decision was made in substitution for the cancelled decision, indicating that the Tribunal exercised its discretion to allow the applicant to retain his visa.