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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa. The applicant, a citizen of Tonga, had his visa mandatorily cancelled under sections 501(3A), 501(6)(a) and 501(7) of the *Migration Act 1958* (Cth) due to failing the character test, stemming from a criminal conviction. The applicant had previously been warned about potential visa cancellation in 2002 and 2008, and a delegate had previously decided not to cancel his visa in 2009, issuing a formal warning.

The Tribunal was required to determine whether there was "another reason" why the mandatory visa cancellation should be revoked, applying Ministerial Direction No. 90. This involved considering the applicant's criminal offending, the risk to the Australian community, and the applicant's personal circumstances, including his ties to Australia, his health, and his family situation. The Tribunal also had to consider the specific criteria outlined in paragraphs 8.1 and 8.1.1 of Ministerial Direction No. 90, which detail the factors to be weighed when assessing the seriousness of conduct and the protection of the Australian community.

The Tribunal considered the applicant's extensive criminal history, including violent and sexual offences, and noted that he had reoffended after being warned. It also considered his evidence regarding his poor health, his lack of family ties in Tonga, and his claimed desire to contribute positively to the Australian community. However, the Tribunal found that the nature and seriousness of the applicant's conduct, particularly his violent and sexual offending, weighed heavily against him. Despite submissions regarding his deteriorating health and his long residence in Australia, the Tribunal concluded that these factors did not constitute "another reason" sufficient to outweigh the risk to the Australian community and the seriousness of his past conduct.

The Tribunal affirmed the delegate's decision not to revoke the mandatory visa cancellation.