Divane and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Jesse Divane, a New Zealand citizen, for review of a decision by a delegate of the Minister for Immigration and Border Protection to cancel his visa under s 501(2) of the *Migration Act 1958* (Cth). Mr Divane had entered Australia on a temporary visa in 2013 and subsequently made false declarations on his Incoming Passenger Card, failing to disclose a substantial criminal history. The Tribunal had jurisdiction to review the delegate's decision.

The primary legal issue before the Tribunal was whether the discretion afforded by s 501(2) of the Act should be exercised to cancel Mr Divane's visa, having regard to the character test provisions and the considerations outlined in Direction No. 65. This involved assessing the nature and seriousness of Mr Divane's conduct, the risk to the Australian community, the strength of his ties to Australia, and the impact on victims.

The Tribunal reasoned that Mr Divane's criminal record was extensive, spanning a significant portion of his adult life and including numerous repeat offences, many of which were serious and violent, particularly in a domestic setting. The Tribunal noted that Mr Divane had a particular propensity for domestic violence, with numerous incidents involving his partner and children, some of which occurred after his arrival in Australia. The Tribunal found that these factors, along with the risk of reoffending and the impact on victims, weighed heavily in favour of cancelling his visa. The Tribunal concluded that Mr Divane did not pass the character test and that the discretion to cancel his visa should be exercised against him.

The Tribunal affirmed the decision under review, ordering that Mr Divane's visa be cancelled.