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Tribunal: Deputy President G Humphries AO and Member W Frost

The AAT affirmed a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Department) not to revoke the mandatory cancellation of the applicant’s resident return visa. He was found to not be of good character. 

The applicant’s visa was cancelled on character grounds because of his substantial criminal record.[1] This was a mandatory cancellation by the Department after the applicant was sentenced to two years and six months in prison for attempting to obtain $50,000 from a member of the community by intimidation and the threating use of a weapon.[2]

When a person does not pass the character test, they can seek a merits review in the AAT where we have the discretion to revoke the cancellation if there is another reason for doing so.[3]

The AAT is required to consider 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. 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.

The applicant arrived in Australia in 1981 as a six-year-old. He had a long history of criminal offending here, which showed a trend of increasing seriousness and he posed a risk to the community. Although the applicant’s ties to his four Australian children were a strong countervailing consideration, the Tribunal found the risk of further violent offending was too great to tip the balance in his favour.

Read the full decision

 

[1] Migration Act 1958 (Cth), s 501(3A).

[2] Migration Act, s 501(7). A substantial criminal record is defined as a term of imprisonment of 12 months or more.

[3] Ministerial Direction no. 79—visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA, made under the Migration Act, s 499.