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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the applicant's Class TY Subclass 444 Special Category visa under subsection 501(2) of the *Migration Act 1958* (Cth). The cancellation was based on the applicant failing to pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal was required to consider whether the discretion to cancel the visa should be exercised.

The primary legal issues before the Tribunal were to determine the weight to be given to various considerations under Ministerial Direction No. 99, particularly the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia affected by the decision, and the expectations of the Australian community. The Tribunal also had to consider other non-exhaustive factors, including the legal consequences of the decision, the extent of impediments if removed, the impact on victims, and the impact on Australian business interests.

The Tribunal reasoned that the applicant's offending conduct, which included assault occasioning actual bodily harm and common assault involving violence against his pregnant former partner, was viewed very seriously and weighed heavily against the exercise of discretion to cancel the visa. However, the Tribunal also found that the best interests of the applicant's minor son, Jessie, favoured against cancellation, as Jessie suffered from depression and relied heavily on his father. While the son could maintain contact with the applicant if he were returned to New Zealand, the Tribunal acknowledged the significant impact on Jessie. The consideration of the expectations of the Australian community, which generally expects non-citizens to obey laws and not engage in serious conduct, also weighed against the applicant.

Ultimately, the Tribunal affirmed the decision under review, indicating that the discretion to cancel the applicant's visa was exercised.