Downes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an appeal by the Applicant, a citizen of New Zealand, against the mandatory cancellation of his visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The cancellation was based on the Applicant’s substantial criminal record, which included serious offences such as unlawfully causing serious harm, assault, and contravention of domestic violence orders. The Applicant had arrived in Australia in 2005 and had re-entered in 2006, remaining in the country until the visa cancellation.

The core legal issue before the Tribunal was whether to exercise the discretion to revoke the mandatory cancellation of the Applicant's visa under section 501CA(4) of the *Migration Act 1958* (Cth). This required the Tribunal to consider whether the Applicant passed the character test, or if there was another reason to revoke the cancellation, having regard to the considerations outlined in the relevant Direction. The Tribunal was tasked with weighing primary considerations, such as the Applicant's criminal record and the risk to the Australian community, against other considerations, including his ties to Australia and any potential rehabilitation.

The Tribunal reasoned that while the Applicant had established some connection to an Indigenous community, evidenced by being given a skin name, this consideration carried only slight weight in favour of revocation. The Applicant had not undergone a formal ceremony to become a full member of that community. Crucially, the Tribunal found that the Applicant’s serious offending, particularly the offence of unlawfully causing serious harm, weighed heavily against revocation. When balancing all primary and other considerations, the Tribunal concluded that the factors favouring non-revocation, specifically the Applicant's criminal history and the risk posed, outweighed those favouring revocation. Consequently, the Tribunal affirmed the decision to cancel the Applicant's visa and did not exercise its discretion to revoke the cancellation.