Downing and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's permanent visa. The Applicant, born in the United Kingdom in 1972, arrived in Australia as an infant and had resided there continuously since. His visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he failed to pass the character test. The Applicant subsequently requested the revocation of this cancellation, which was refused by a delegate of the Minister for Home Affairs. The Administrative Appeals Tribunal was tasked with determining whether the Applicant passed the character test, and if not, whether there was another reason to revoke the cancellation decision.

The Tribunal was required to consider two primary legal issues. Firstly, whether the Applicant met the character test as defined by section 501(6) of the *Migration Act*. Secondly, if the Applicant did not pass the character test, the Tribunal had to determine if there was another reason why the visa cancellation decision should be revoked, pursuant to section 501CA(4) of the *Migration Act*. This involved assessing various considerations outlined in Ministerial Direction No. 65, including the protection of the Australian community, the best interests of minor children, community expectations, the nature and seriousness of the Applicant's criminal offending, the risk of future criminal conduct, the strength and duration of his ties to Australia, and the impact of his removal on Australian business interests.

In its reasoning, the Tribunal noted the Applicant's extensive criminal history, commencing at age 14 and resulting in 97 convictions, including serious offences such as grievous bodily harm and manufacturing methylamphetamine. Despite receiving formal warnings in 2001 and 2012, the Applicant continued to offend. The Tribunal considered expert evidence from a clinical psychologist suggesting the Applicant might have Attention Deficit Hyperactivity Disorder and longstanding depression and anxiety, which may have contributed to his impulsive behaviour and self-medication with drugs. However, the Tribunal found that the Applicant's criminal record, particularly his consistent offending throughout his adult life in Australia, weighed heavily against him. While acknowledging the Applicant's significant ties to Australia, including his family members who provided supportive statements, the Tribunal found limited evidence of broader community involvement. The Tribunal also noted that the Applicant began offending within approximately 14 years of arriving in Australia, diminishing the weight given to his length of residence. Ultimately, the Tribunal concluded that the Applicant did not pass the character test and that there was no other reason to revoke the cancellation decision.