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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of New Zealand, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) following convictions for intervention order breaches and related offences in Australia, for which he was sentenced to 15 months imprisonment. He also had prior convictions in New Zealand. The Tribunal was asked to determine whether the mandatory cancellation of the applicant's visa should be revoked.

The Tribunal was required to consider the primary considerations outlined in Ministerial Direction 79, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. In assessing the protection of the Australian community, the Tribunal had regard to the nature and seriousness of the applicant's conduct, the risk of future offending, and the cumulative effect of repeated offending. The Tribunal also considered the applicant's criminal history, including both New Zealand and Australian offences, and the sentences imposed.

The Tribunal reasoned that while Ministerial Direction 79 generally requires primary considerations to be given more weight, it is established that the Tribunal can give equal or greater weight to any consideration in exercising its discretion. The Tribunal accepted the respondent's contention that the preconditions for the mandatory cancellation under section 501(3A) were met at the time of cancellation, as the applicant had been sentenced to a term of imprisonment of 12 months or more. The Tribunal found that the applicant's Australian convictions, which resulted in an aggregate sentence of 15 months imprisonment (later reduced to time served), constituted a substantial criminal record for the purposes of section 501(6)(a) and 501(7)(c) of the Act. The Tribunal ultimately set aside the decision under review.