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

This case concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's visa. The applicant, Mr. Alesana, a Samoan citizen who had resided in Australia since he was 14 years old, had his visa cancelled under subsection 501(3A) of the *Migration Act 1958* following a further violent offence that resulted in the conversion of an intensive corrections order to a full-time prison sentence. The applicant subsequently requested revocation of the cancellation, which was refused by a delegate of the Minister. The applicant then sought review of this refusal.

The primary legal issue before the court was whether the delegate's decision not to revoke the visa cancellation was lawful and reasonable, particularly in light of the considerations outlined in Ministerial Direction No. 79. This involved assessing the applicant's criminal history, the risk he posed to the Australian community, the best interests of his minor children, and other relevant considerations such as his ties to Australia. The court was required to determine if the delegate had properly applied the principles of the Direction, including the weight to be given to the protection of the Australian community, the seriousness of the applicant's offending, and the expectations of the Australian community regarding non-citizens.

The court reasoned that while the applicant had a significant and serious criminal history, including violent offences against women and an offence against his daughter, the delegate had not adequately considered all relevant factors. Specifically, the court noted that the delegate had not given sufficient weight to the fact that a court had not deemed a custodial sentence appropriate for some of the offences at the time. Furthermore, the court found that the delegate had not properly balanced the protection of the Australian community against other considerations, such as the applicant's strong ties to Australia, his long period of residence, and the best interests of his minor children, some of whom he had a close relationship with. The court concluded that the delegate's decision was affected by an error of law and that the decision under review should be set aside and substituted.

The court set aside the delegate's decision not to revoke the visa cancellation and substituted a decision revoking the cancellation. Consequently, the applicant's visa was not cancelled.