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

This matter concerned an application by Michael David James for the revocation of a mandatory visa cancellation made under section 501(3A) of the *Migration Act 1958* (Cth). The applicant, a citizen of New Zealand, had resided in Australia since 1986, arriving as a child. His visa had been cancelled due to a substantial criminal record, stemming from convictions in 2012 for armed robbery, and more recently in 2021 for drug and weapon offences. The Administrative Appeals Tribunal was required to determine whether to exercise its power under section 501CA(4) of the Act to revoke this cancellation.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by section 501 of the Act, and if not, whether there was "another reason" why the visa cancellation should be revoked. The Tribunal considered the applicant's criminal history, including a significant nine-year gap between his initial serious offending and subsequent, less severe, convictions. It also had regard to the applicant's long-standing ties to the Australian community and the potential impediments to his removal, given his long residence in Australia since childhood.

In its reasoning, the Tribunal acknowledged that the applicant did not pass the character test due to his substantial criminal record, as defined by the Act. However, it then considered the second limb of section 501CA(4)(b)(ii), which allows for revocation if there is "another reason". Applying Ministerial Direction 90, the Tribunal weighed various considerations, including the protection of the Australian community, the nature and seriousness of the offending, and crucially, the applicant's strong links to the Australian community and the extent of impediments if removed. The Tribunal found that these countervailing factors, particularly the long period of residence and the gap in offending, constituted "another reason" to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the original decision to cancel the applicant's visa and substituted a decision to revoke that cancellation.