Botha and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to cancel the applicant, Mr Cheslyn Botha's, Class TY Subclass 444 Special Category (Temporary) visa. The applicant, a New Zealand citizen, had been granted this visa upon his arrival in Australia in 2006 and had subsequently moved to Australia permanently with his family. The cancellation was based on the applicant failing to pass the character test, as defined by section 501(6) of the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal had jurisdiction to review this decision.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether his visa should be cancelled. Specifically, the Tribunal was required to determine if the applicant had a substantial criminal record, as defined by section 501(7)(c) of the Act, and to consider the mandatory Ministerial Direction No 65, which governs decisions regarding visa refusal and cancellation under section 501. The Tribunal had to assess the weight of various considerations, including the protection of the Australian community, the interests of minor children, and the expectations of the Australian community, against any factors favouring the revocation of the cancellation decision.

The Tribunal found that the applicant did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months. The Tribunal applied Ministerial Direction No 65, which mandates consideration of the protection of the Australian community from criminal or other serious conduct. The Tribunal noted the applicant's convictions for assault occasioning bodily harm, one of which resulted in a one-year suspended sentence and another an eight-month prison sentence, both involving serious assaults on his wife. The Tribunal concluded that these considerations, along with the interests of minor children and the expectations of the Australian community, supported the cancellation of the applicant's visa, and these factors were not outweighed by any considerations favouring revocation.

The Tribunal affirmed the decision under review, confirming the cancellation of the applicant's visa.