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

This matter concerned the Applicant, Mr Dayadaya, and the Minister for Immigration, Citizenship and Multicultural Affairs, regarding the non-revocation of a mandatory cancellation of the Applicant's Class BB Subclass 155 (Five Year Resident Return) visa. The Applicant did not pass the character test, leading to the consideration of whether the power to cancel his visa should be exercised under section 501(2) of the Migration Act 1958 (Cth), with regard to Ministerial Direction No. 99.

The primary legal issue before the Tribunal was to determine whether the Applicant's visa should be cancelled, considering his character issues and the relevant Ministerial Direction. This involved assessing the weight to be given to various factors, including the Applicant's criminal history, his ties to Australia, and the potential impact of cancellation on his family members. The Tribunal was also required to consider the High Court's decision in *Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton* [2023] HCA 17, which concerned the treatment of offences committed as a child.

The Tribunal reasoned that while the Applicant had a significant criminal history, including convictions for serious assault, contravention of domestic violence orders, and drug offences, certain offending committed as a child was excluded from consideration in light of the *Thornton* decision and section 85ZR(2) of the Crimes Act 1914 (Cth). The Tribunal found that the Applicant's ties to his partner and his stepson, Child H, weighed heavily in favour of not cancelling his visa. It also found that his relationship with his biological son, Child D, was a significant factor supporting non-cancellation, acknowledging the emotional and financial impact deportation would have on Child D. The Tribunal noted that while the Applicant had biological children, his ties to them were either neutral or not well-established, with no contact for several years in one instance and never having met the child in another.

Ultimately, the Tribunal concluded that the factors weighing in favour of not cancelling the Applicant's visa, particularly the impact on his partner and children, were substantial. The decision affirmed the non-revocation of the mandatory cancellation of the Applicant's visa.