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

This matter concerned an application by the Applicant, born in New Zealand in 1974, to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record. The Applicant did not dispute that he had a substantial criminal record.

The central legal issue before the court was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4) of the *Migration Act 1958* (Cth). In determining this, the court was required to consider Ministerial Direction No. 90, which outlines the principles and considerations relevant to such decisions, including the protection of the Australian community and the weight to be given to various factors.

The court reasoned that the Applicant's offending commenced shortly after his arrival in Australia in 2004 and had continued. In assessing the primary consideration of protecting the Australian community, the court had regard to the nature and seriousness of the Applicant's conduct. This included serious acts of family violence occurring in the presence of his infant children and involvement in armed robberies, which were considered extremely serious. The court also noted that while Australia may afford a higher tolerance for conduct by non-citizens who have lived in the community from a very young age, the Applicant's offending commenced when he was already 30 years old. The court found that the Applicant's conduct was sufficiently serious that even strong countervailing considerations might be insufficient to justify revoking the cancellation.

The Tribunal affirmed the original decision to cancel the Applicant's visa, finding that there was no other reason why the decision should be revoked under section 501CA(4).