Dayal and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant, Mr. Dayal, for the non-revocation of a mandatory cancellation of his Resident Return visa. The visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because the Applicant did not pass the character test and was serving a full-time term of imprisonment. The dispute before the Tribunal was whether the discretion under section 501CA of the Act to revoke the mandatory cancellation should be exercised in the Applicant's favour.

The legal issues before the Tribunal were primarily concerned with the considerations outlined in Direction No 79, which governs the exercise of the discretion to revoke a mandatory visa cancellation. Specifically, the Tribunal was required to assess the risk of the Applicant re-offending and the risk of harm to the Australian community, taking into account factors such as the Applicant's minor children, the expectations of the Australian community, and the strength, duration, and nature of his ties to Australia.

The Tribunal reasoned that the protection of the Australian community from criminal activity is a paramount consideration. It noted that remaining in Australia is a privilege for non-citizens, carrying an expectation of law-abiding behaviour. The Applicant's criminal history, spanning 30 years and involving very serious offending, including participation in activities with the potential for catastrophic harm, weighed heavily against revocation. While the Applicant claimed to have undertaken rehabilitation courses, the Tribunal found that his issues with illicit substances remained unresolved and that his rehabilitation had not been sufficiently tested outside of custodial settings. Consequently, the Tribunal concluded that there was a greater than remote risk of him re-offending, rendering his risk of recidivism unacceptable.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa.