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

This matter concerned an application by JTNW (the applicant) to review the mandatory cancellation of his Class XE Subclass 790 Safe Haven Enterprise visa. The visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because the applicant did not pass the character test due to having a substantial criminal record. The decision was heard by Linda Kirk SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether there was a "substantial criminal record" for the purposes of section 501(3A) and, if so, whether there was "another reason" why the mandatory visa cancellation decision should be revoked under section 501CA(4)(b)(ii) of the Act. In considering the latter issue, the Tribunal was required to apply Ministerial Direction No. 90, which outlines the primary and other considerations to be taken into account, including the protection of the Australian community.

The Tribunal found that the applicant did indeed have a substantial criminal record, stemming from convictions for domestic violence offences, including stalking, intimidation, contravention of an apprehended violence order, property damage, common assault, and being armed with intent to commit an indictable offence. In assessing whether there was "another reason" to revoke the cancellation, the Tribunal considered the primary consideration of protecting the Australian community. It noted that the applicant's conduct involved violent crimes against women and acts of family violence, which are viewed very seriously by the Australian Government and community, irrespective of the sentence imposed. The Tribunal also considered other factors, such as the applicant's conversion to Christianity and his efforts to maintain his faith while in detention, as well as his background and contributions in Australia.

Ultimately, the Tribunal determined that the mandatory visa cancellation decision should be revoked. The Tribunal substituted the decision of the delegate with its own decision to revoke the cancellation.