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

This matter concerned an application for review by the Applicant, a New Zealand citizen, of a delegate of the Minister's decision not to revoke the mandatory cancellation of his Class TY, Subclass 444 Special Category (Temporary) visa. The visa had been cancelled due to the Applicant failing the character test, specifically by having a substantial criminal record as defined by the *Migration Act 1958* (Cth).

The central legal issue before the Tribunal was whether the mandatory cancellation of the Applicant's visa should be revoked under subsection 501CA(4) of the *Migration Act 1958* (Cth). This required the Tribunal to be satisfied that either the Applicant passed the character test or that there was another reason to revoke the cancellation. The Tribunal was guided by Direction No. 79, which outlines considerations for such decisions, including the protection of the Australian community, the best interests of minor children, community expectations, international non-refoulement obligations, the strength and duration of ties to Australia, and the extent of impediments upon removal.

The Tribunal considered the various factors outlined in Direction No. 79. It noted that while Australia has non-refoulement obligations, these do not preclude visa cancellation and must be weighed against the seriousness of the offending conduct. The Tribunal also examined the strength of the Applicant's ties to Australia, the impact of removal on his family, and the potential impediments he might face if returned to New Zealand. The Preamble to Direction No. 79 emphasised the government's commitment to protecting the Australian community and the expectation that non-citizens committing serious crimes should generally forfeit their right to remain in Australia.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation.