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

The case of *Fear and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)* concerned an application to the Tribunal to revoke a mandatory decision to cancel Mr Fear's visa. Mr Fear, a 57-year-old New Zealand citizen, had resided in Australia since he was two years old and possessed a significant criminal record spanning from 1986 to 2021, including drug offences, firearm possession, theft, property damage, assault, and contraventions of apprehended domestic violence orders. The Minister's delegate had previously considered cancelling Mr Fear's visa in 2008, issuing a formal warning that further offending could lead to reconsideration of his visa status.

The Tribunal was required to determine two primary issues: firstly, whether Mr Fear passed the character test as defined in the *Migration Act 1958* (Cth); and secondly, if he did not pass the character test, whether there was "another reason" why the mandatory visa cancellation decision should be revoked under section 501CA(4) of the Act. In considering the second issue, the Tribunal was bound to comply with Ministerial Direction 99, which outlines primary and other considerations relevant to such revocation decisions.

In its reasoning, the Tribunal found that Mr Fear failed the character test due to having a "substantial criminal record," as defined by section 501(7) of the Act, stemming from a prison sentence of 12 months or more for a drug supply offence. Consequently, the Tribunal then considered whether there was "another reason" to revoke the cancellation, applying Ministerial Direction 99. This involved evaluating primary considerations such as the protection of the Australian community from criminal conduct, the nature and seriousness of Mr Fear's offending (including family violence), the strength and duration of his ties to Australia, the best interests of any minor children, and community expectations. The Tribunal also considered other relevant factors, including the legal consequences of the decision and the extent of impediments to Mr Fear's removal. Despite Mr Fear's long residence in Australia, his lack of ties to New Zealand, and his stated remorse and desire to be a productive member of the community, the Tribunal weighed these factors against the seriousness and frequency of his criminal conduct, including reoffending after a formal warning.

Ultimately, the Tribunal decided to affirm the decision not to revoke the mandatory visa cancellation. The Tribunal concluded that the primary consideration of protecting the Australian community from criminal conduct, given the nature and seriousness of Mr Fear's offending and the risk of reoffending, outweighed the other considerations presented.