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

This matter concerned an application by Mr Bourhas for the non-revocation of the mandatory cancellation of his Special Category (Class TY) (Subclass 444) visa. Mr Bourhas, a citizen of New Zealand, had his visa mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test due to having a substantial criminal record, including aggravated robbery. The decision under review was made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

The primary legal issues before the court were whether there was "another reason" why the original decision to cancel Mr Bourhas's visa should be revoked, considering the criteria set out in Direction No. 90. This involved assessing the weight to be given to primary considerations, specifically the protection of the Australian community and the expectations of the Australian community, against other considerations, such as the strength, nature, and duration of Mr Bourhas's ties to Australia and the extent of impediments he might face if removed from Australia.

The court reasoned that while Mr Bourhas's ties to Australia, including his residence since infancy and later as an adult, and his social connections, favoured revocation, these were diminished by the fact that he commenced offending soon after arriving in Australia as an adult. The court found that the protection of the Australian community weighed heavily against revocation, particularly given the violent nature of his most recent convictions and the risk of reoffending. Furthermore, the court determined that the expectations of the Australian community, which expects non-citizens to obey Australian laws, were not met by Mr Bourhas's criminal conduct, including serious offences. The court concluded that the Australian community would expect that Mr Bourhas should not hold a visa, and this primary consideration outweighed other factors.

The court affirmed the decision to not revoke the mandatory cancellation of Mr Bourhas's visa.