XJLR and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal, constituted by M Griffin QC SM, considered the case of XJLR and the Minister for Home Affairs concerning the cancellation of the Applicant's visa on character grounds. The Applicant, who had resided in Australia since 1992, sought the revocation of a decision not to revoke the mandatory cancellation of his visa, which had been initiated due to his substantial criminal record, including firearm, domestic violence, and traffic offences. The Applicant did not contest the convictions themselves but argued for revocation based on "other reasons" as permitted by section 501CA(4)(b) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether there was another reason why the original decision to cancel the Applicant's visa should be revoked, given that the Applicant did not pass the character test due to his substantial criminal record. This involved weighing various considerations outlined in Direction 79, including the strength and duration of the Applicant's ties to Australia, the impact of removal on his family, particularly his minor child and granddaughter, the potential impact on victims of his offending, and the extent of impediments he might face if removed to New Zealand. The Tribunal also had to consider any non-refoulement obligations Australia might owe to the Applicant.

In its reasoning, the Tribunal acknowledged the Applicant's long period of residence in Australia and the adverse impact his removal would have, particularly given his history of depression and cancer treatment, and his past experiences of abuse in New Zealand. However, the Tribunal ultimately concluded that the paramount consideration was the protection of the Australian community. This was based on the seriousness of the Applicant's past offences, his history of offending while on parole, and the prospect of future offending, which posed a significant risk to the community. The Tribunal found that these factors weighed so strongly in favour of non-revocation that they outweighed the considerations in the Applicant's favour.

Consequently, the Tribunal affirmed the original decision not to revoke the mandatory cancellation of the Applicant's visa.