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

This matter concerned the review of a decision by the Minister's delegate not to revoke the mandatory cancellation of Mr Figota's visa. Mr Figota, a New Zealand citizen, had arrived in Australia as a child and had resided there for most of his life, holding a Special Category (Temporary) visa. His visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record. The Tribunal was required to determine if there was "another reason" under section 501CA(4)(b)(ii) of the Act why the cancellation should be revoked.

The Tribunal was tasked with considering various factors outlined in Direction No. 79, including the protection of the Australian community, the nature and seriousness of Mr Figota's conduct, the best interests of his minor children in Australia, and the expectations of the Australian community. The Tribunal also considered the strength, nature, and duration of Mr Figota's ties to Australia, as well as the extent of impediments he would face if removed. An additional submission that Article 14 of the International Covenant on Civil and Political Rights meant Australia was Mr Figota's "own country" was also addressed.

The Tribunal found that Mr Figota did not pass the character test due to his criminal convictions and the substantial prison sentence he received. In assessing whether to revoke the cancellation, the Tribunal weighed the primary considerations. It found that the protection of the Australian community weighed heavily against revocation, given the serious nature of his offending, including aggravated burglary and assault causing grievous bodily harm. While the Tribunal accepted that the best interests of Mr Figota's four Australian citizen children favoured revocation, noting their strong desire for their father's return and the disruption their relocation to New Zealand would cause, this consideration was balanced against the risk posed to the community. The Tribunal also considered the expectations of the Australian community, which generally expects non-citizens to be law-abiding.

Ultimately, the Tribunal determined that there was no "another reason" to revoke the mandatory cancellation of Mr Figota's visa. The Tribunal affirmed the original decision not to revoke the cancellation.