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

This matter concerned an application for review of the mandatory cancellation of the applicant's Class TY Subclass 444 special category visa. The applicant conceded that he failed the character test due to having a substantial criminal record. The central dispute before the Tribunal was whether there was another reason to revoke the mandatory cancellation of the visa, having regard to Ministerial Direction No. 90.

The Tribunal was required to determine the weight to be given to the primary considerations outlined in Direction No. 90, specifically the protection of the Australian community and the expectations of the Australian community. It also had to consider other relevant factors, including any impediments the applicant might face upon removal to New Zealand. The assessment involved evaluating the nature and seriousness of the applicant's conduct, the risk of re-offending, and the potential harm to the Australian community.

In its reasoning, the Tribunal found that the applicant's offending was at least serious, and more likely very serious, thereby breaching the expectations of the Australian community. The Tribunal noted the applicant's long period of residence in Australia and his past employment history, but weighed these against the very serious nature of his offending, his continued alcohol abuse, and the significant risk of harm to the community should he re-offend. The Tribunal concluded that the deemed community expectation weighed heavily against revoking the cancellation. Regarding other considerations, the applicant expressed no fear of harm upon return to New Zealand, and no international non-refoulement obligations were identified. The Tribunal therefore affirmed the decision to cancel the applicant's visa.