Downes and Minister for Home Affairs (Migration)

The applicant, Mr Downes, sought review of a delegate of the Minister for Home Affairs' decision not to revoke the mandatory cancellation of his visa. Mr Downes, a New Zealand citizen, held a Special Category (Class TY) subclass 444 visa and had resided in Australia since 2005. His visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, which included convictions for serious offences such as unlawfully causing serious harm, domestic violence, and breaches of court orders. The delegate's decision not to revoke the cancellation was made on 3 January 2019, following Mr Downes' request for revocation.

The primary legal issue before the court was whether there was "another reason" why the original decision to cancel Mr Downes' visa should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act*. This determination was to be made in accordance with Ministerial Direction No. 79, which mandated that decision-makers treat the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community as primary considerations. The court was required to assess the nature and seriousness of Mr Downes' conduct and the risk he posed to the Australian community should he commit further offences.

In its reasoning, the court considered the serious nature of Mr Downes' criminal offending, particularly the 2010 assault on a pizza shop employee, which resulted in severe brain injuries and ongoing neuro-behavioural issues for the victim. The court noted that violent crimes, especially those against women or children, are viewed very seriously, and that the frequency and trend of offending are relevant factors. The court also had regard to the fact that Mr Downes did not contend that he passed the character test, and indeed, his conviction and sentence for the 2010 assault constituted a substantial criminal record. The court's analysis focused on whether the evidence presented established "another reason" to revoke the cancellation, weighing the applicant's conduct against the primary considerations outlined in Ministerial Direction No. 79.