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Tribunal: Senior Member the Hon. M Groom

The AAT affirmed a decision of the Minister for Immigration (the Department) not to revoke the mandatory cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa. He was found to be not of good character and had a lengthy criminal record that included extreme violence.[1]

The applicant had migrated to Australia and lived here for ten years and held dual citizenship of Samoa and New Zealand. His visa was cancelled following his most recent conviction for common assault and multiple breaches of an apprehended violence order against his former partner.

When a person does not pass the character test, they can apply to the AAT to review the Department’s decision. In this review, the issue before the Tribunal was whether there is another reason to revoke the cancellation taking into account Direction No. 79.[2]

This direction requires the AAT 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.

An initial threshold issue of non-payment of the application fee was overcome after the AAT used its discretion to proceed with the hearing. The fact the applicant was in detention, the bulk of the cost of running a hearing had already been incurred and that there were serious consequences for the applicant if the hearing did not proceed, gave the AAT a basis to make an exception.

The AAT recognised that the applicant lived in Australia for a decade and contributed somewhat through work and other community activities. He also had a significant social connection here with his young daughter. However, this was tempered by the fact his offences against the person were extremely violent and involved offending against his former partner in the domestic setting.

The applicant’s offending involved a trend of increasing seriousness that posed an unacceptable risk to the community. Having weighed all of the relevant considerations the AAT concluded that the balance fell in favour of not revoking the cancellation of the applicant’s visa.

Read the full decision

 

 

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

[2] Made under the Migration Act s 499.