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

This matter concerned the cancellation of the applicant's visa on character grounds under section 501(2) of the *Migration Act 1958* (Cth). The applicant, a New Zealand citizen, had a criminal history spanning from 2015 to 2021, which included multiple convictions for family violence offences against his former partner and membership in the Rebels motorcycle gang. The Minister had determined that the applicant did not pass the character test by reason of section 501(6)(b) of the Act. The applicant contended that the discretion to cancel his visa should not be exercised, arguing that he had left the motorcycle gang, was rehabilitated, and had strong ties to the Australian community, including a current partner and young child. The decision was heard by Deputy President Britten-Jones.

The primary legal issue before the court was whether the discretion to cancel the applicant's visa should be exercised, considering the competing factors outlined in Direction 99. This involved assessing the weight to be given to the protection of the Australian community from criminal activity, the nature and seriousness of the applicant's past conduct, and the risk of future offending, against other considerations such as the applicant's strong ties to Australia and the best interests of his minor children. The court was required to determine if the factors favouring cancellation were outweighed by those favouring the retention of the visa.

The court reasoned that while the applicant's past conduct, including family violence and association with a criminal organisation, weighed heavily in favour of cancellation, these factors were outweighed by countervailing considerations. The court placed significant weight on expert opinion indicating a low risk of further violent reoffending, supported by evidence of the applicant's rehabilitation and the strong support network provided by his current partner and her family. Furthermore, the court found that the applicant's substantial ties to the Australian community and the best interests of his young child were primary considerations that tipped the balance against cancellation. The court concluded that the applicant's behaviour towards his former partner, while abhorrent, was confined to that relationship, and he had demonstrated positive conduct and a good work ethic since early 2021.

Ultimately, the court found that the factors favouring the retention of the visa, particularly the applicant's strong community ties and the best interests of his children, were sufficient to outweigh the reasons for cancellation. Consequently, the decision under review to cancel the applicant's visa was set aside.