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

The Administrative Appeals Tribunal considered the case of Himone and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the non-revocation of a mandatory visa cancellation. The applicant, a New Zealand citizen, had his Class TY Subclass 444 Special Category (Temporary) visa mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically being sentenced to a term of imprisonment of more than 12 months and serving a full-time sentence. The applicant sought revocation of this cancellation, but a delegate of the Minister decided not to revoke it. The Tribunal was asked to review this non-revocation decision.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by section 501CA(4) of the Act. This required the Tribunal to assess the applicant's character, taking into account his offending history, the circumstances of his offences, his background, and any evidence of remorse or rehabilitation, in light of Ministerial Direction No. 90. The Tribunal also had to consider the protection of the Australian community from criminal or other serious conduct.

The Tribunal reasoned that while the applicant had a difficult childhood marked by poverty, parental abandonment, and domestic violence, and that a sentencing judge had acknowledged his immaturity and reduced capacity for decision-making, these factors did not outweigh the seriousness of his adult offending. This offending included aggravated break and enter, assault, and affray, which involved violence, threats, and significant harm to the victim and his young children. The Tribunal noted inconsistencies in the applicant's accounts of his offending and drug use, and found that while some evidence of remorse was present, it was accompanied by hesitation. Applying the principles from *Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2022] FCAFC 23, the Tribunal focused on the applicant's adult offending and concluded that the primary consideration of protecting the Australian community from serious conduct was paramount.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the visa cancellation. The Tribunal found that the applicant had not demonstrated that there was another reason to revoke the mandatory cancellation, and that the seriousness of his criminal conduct and the need to protect the Australian community were overriding factors.