Dalley and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Dalley for the revocation of the mandatory cancellation of his Special Category Class TY Subclass 444 visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because Mr Dalley possessed a substantial criminal record and was serving a full-time term of imprisonment. The Minister for Home Affairs opposed the revocation.

The court was required to determine whether the discretion conferred by section 501CA of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of Mr Dalley's visa should be exercised. In making this determination, the court was bound to consider the considerations outlined in Direction No 79, including the risk of Mr Dalley re-offending, the risk of harm to the Australian community, the best interests of his minor children, and the expectations of the Australian community.

The court reasoned that Mr Dalley's offending, particularly the 2008 conviction for intentionally causing serious injury, was very serious and involved extreme physical violence. Despite Mr Dalley's claims of reduced alcohol consumption and participation in rehabilitation programs, the court found that there was insufficient evidence to demonstrate that he had overcome his tendency towards binge drinking and consequential violent offending. The court noted that any rehabilitation efforts had occurred within the confines of criminal custody or immigration detention, and insufficient time had elapsed in an unsupervised community setting to test the efficacy of these efforts. Consequently, the court concluded that the likelihood of Mr Dalley re-offending remained unresolved and a live possibility.

The court affirmed the decision to refuse to revoke the mandatory cancellation of Mr Dalley's visa.