Hall Infante and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Mr Esteban Alejandro Hall Infante (the Applicant) for review of a decision to refuse to revoke the mandatory cancellation of his Class AS Subclass 801 Spouse visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record, including robbery and acts of family violence. The Applicant had previously had a visa cancellation revoked after providing assurances and warnings, but subsequently reoffended. The Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) was the respondent. The decision was made by Senior Member Hon J Rau SC of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion to revoke the visa cancellation under section 501CA(4) of the *Migration Act 1958* (Cth) should be exercised. This required the Tribunal to consider various primary and other considerations, including Ministerial Direction No. 99, to determine if the Applicant's circumstances warranted the revocation of the cancellation. The Tribunal also had to assess the weight to be given to the Applicant's past conduct, his assurances of reform, and the potential impact of his removal from Australia.

The Tribunal reasoned that the Applicant's failure to call a critical witness, B.R., raised serious questions about the reliability of his evidence, particularly concerning his future plans. The Tribunal noted that the Applicant had been warned on a previous occasion that further criminal conduct could lead to visa cancellation, and that this warning had been disregarded. The Applicant's history of offending, including family violence and drug use, was considered significant. Despite the Applicant's claims of reform and participation in programs, the Tribunal found that his assurances carried little weight given his past conduct, particularly his immediate resumption of drug use and offending after a previous release. The Tribunal concluded that the primary considerations weighed heavily against revocation, and that other considerations, such as the impediments to removal, weighed heavily in favour of revocation.

The Tribunal affirmed the decision to refuse to revoke the visa cancellation. The discretion under section 501CA(4) was not exercised in favour of the Applicant.