Tribunal: Deputy President S Boyle
The AAT set aside a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) not to revoke the mandatory cancellation of the applicant’s temporary visa. The AAT substituted its decision that the cancellation be revoked, finding the applicant was unlikely to engage in further criminal conduct.
The applicant’s visa was cancelled on character grounds because of his substantial criminal record. This was a mandatory cancellation by the Department after the applicant was sentenced to 20 months in prison for possession of a prohibited drug with intent to sell and supply. That was the applicant’s only prison sentence.
When a person has requested revocation of the cancellation of the visa and that request has been refused, they can seek a merits review in the AAT of the decision not to exercise the discretion to revoke the cancellation.
The AAT is required to consider the matters set out in Ministerial Direction no. 79 (the Ministerial Direction) which include 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 (primary considerations). The Tribunal must also consider other factors, such as our international non-refoulement obligation and the strength, nature and length of a person’s ties to Australia (other considerations).
The applicant arrived in Australia in 2011 as a 20-year-old. He had, except for a brief period before his serious offending in 2018, not engaged in any serious criminal behaviour and had been employed and, based on the statements of support provided by those with whom he worked, was a reliable and valued worker. Although he committed a serious crime, the sentencing judge and the parole board both expressed the view he had good prospects for rehabilitation and was unlikely to reoffend.
When assessing the threat the applicant posed to the Australian community, the AAT found the likelihood he would reoffend as low, which was not an unacceptable risk. This weighed in favour of revoking the cancelling of the visa. Taking into account all of the factors that must be considered under the Ministerial Direction, while none was particularly strong, the considerations in favour of the exercise of the discretion to revoke the cancellation outweighed those against.
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