Emery and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application to review the cancellation of the Applicant's Class TY (Subclass 444) Special Category (Temporary) visa under section 501(2) of the *Migration Act 1958* (Cth). The cancellation was based on the Applicant failing to pass the character test, specifically due to a reasonable suspicion of association with an organisation under section 501(6)(b) of the Act. The decision under review was made by the Minister for Immigration, Citizenship, and Multicultural Affairs.

The court was required to determine whether the Applicant's visa cancellation was valid, particularly in light of Ministerial Direction No. 90, which governs the exercise of the Minister's discretion under section 501 of the Act. This involved assessing the nature and seriousness of the Applicant's conduct to date and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, as mandated by the Direction.

The court considered evidence regarding the Applicant's psychological background and his decision-making process leading to his association with the Mongrel Mob. It noted that while the Applicant's decision to join the organisation was described as "maladaptive" and showing "poor judgment," it was understood within the context of his lifelong sense of not belonging and seeking social connection. The court also took into account that the Applicant had removed himself from the organisation in 2016 and had not re-associated with it since, despite experiencing threats. The court found that the Applicant's unlawful conduct in Australia could be characterised as "serious" and that the risk of future harm to the Australian community was a significant consideration.

Ultimately, the court set aside the original decision and substituted its own decision. The court concluded that it would not be safe to find that the Applicant had received a formal warning about the consequences of further offending on his visa status. Given that the Applicant had not re-offended since receiving a Notice of Intention to Cancel (NOICC) and had demonstrated a change in his thinking, the court determined that a particular paragraph of the Direction should be rendered neutral.