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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 50-year-old man who arrived in Australia at age 24, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically a sentence of 12 months imprisonment or more. The applicant sought revocation of this cancellation decision, arguing that the delegate failed to consider all relevant materials that would suggest the primary considerations weighed in favour of revocation.

The central legal issue before the Tribunal was whether there was "another reason" why the decision to cancel the applicant's visa should be revoked, having regard to the primary and other considerations outlined in Direction No. 90. This required the Tribunal to assess various factors, including the protection of the Australian community, the nature and seriousness of the applicant's criminal offending, the risk to the Australian community of further offending, the best interests of any minor children, the expectations of the Australian community, and the strength, nature, and duration of the applicant's ties to Australia, as well as any impediments he might face if returned to New Zealand.

The Tribunal considered the applicant's submissions, including his claims of innocence regarding the drug possession offence, his severe Type 1 diabetes, his engagement with counselling services for anxiety and PTSD, his remorse, his strong relationship with his daughter, his estranged relationship with his son, his ties to his Australian family, and his desire to care for his mother and establish a diabetic care facility. However, the Tribunal noted that it could not go behind the factual findings of the sentencing judge regarding the offending. Applying Direction No. 90, the Tribunal found that while some considerations weighed in the applicant's favour, such as his ties to Australia and the best interests of his daughter, these were outweighed by the primary consideration of protecting the Australian community from criminal activity, given the serious nature of his offending.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal concluded that there was no "another reason" to revoke the cancellation decision, finding that the weight of the considerations, particularly the need to protect the Australian community, favoured the affirmation of the cancellation.