Byron and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by the Minister's delegate to cancel the applicant's Five Year Resident Return (Class BB) (Subclass 155) visa under section 501(2) of the *Migration Act 1958* (Cth). The applicant, who arrived in Australia at the age of eight, had been convicted of murder in 1986 and sentenced to life imprisonment. He had subsequently been released on parole and had been in the community for ten years. The core dispute revolved around whether the discretion to cancel the applicant's visa should be exercised, given his substantial criminal record and the circumstances of his long-term residence in Australia.

The court was required to determine whether the applicant passed the character test, as defined by section 501(6) and (7) of the *Migration Act*, and if not, whether the discretion to cancel his visa should be exercised. This determination was to be guided by Direction 90, which mandates that decision-makers consider both primary and other considerations. The court needed to weigh the seriousness of the applicant's past conduct against factors such as his risk of reoffending and his strong links to the Australian community.

In reaching its decision, the court applied the principles outlined in Direction 90, which prioritises the protection of the Australian community. It considered the nature and seriousness of the applicant's conduct, including his conviction for murder and a prior assault, and assessed the risk of future offending. However, the court also gave significant weight to other considerations, particularly the applicant's long-term residence in Australia since childhood and his demonstrated lack of a measurable risk of reoffending. The court found that these countervailing considerations were sufficient to outweigh the seriousness of his past criminal conduct, leading to the decision to set aside the visa cancellation.