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

This matter concerned an appeal by Mr Karehana against the mandatory cancellation of his special category (subclass 444) visa, which had been cancelled by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under section 501(3A) of the *Migration Act 1958* (Cth) on the basis that Mr Karehana did not pass the character test due to having a substantial criminal record. The appeal was heard by Dr L Bygrave, Member, of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were to consider the relevant considerations under Ministerial Direction No. 90, specifically the protection of the Australian community from criminal and other serious conduct, the best interests of any minor children in Australia, and other considerations including impediments to removal and links to the Australian community. The Tribunal was required to assess the nature and seriousness of Mr Karehana’s past offending and the risk he posed to the Australian community, as well as the strength, nature, and duration of his ties to Australia.

The Tribunal's reasoning focused on the seriousness of Mr Karehana's criminal record, which included convictions for drug possession, driving offences, stalking and intimidation, assault occasioning actual bodily harm in company, and reckless grievous bodily harm. The Tribunal detailed the facts of the assault and intimidation offences, which involved Mr Karehana physically restraining a victim while others assaulted him. The Tribunal noted that Mr Karehana accepted the accuracy of his criminal record and the agreed facts of his offending. In applying Ministerial Direction No. 90, the Tribunal weighed the protection of the Australian community against other considerations.

The Tribunal affirmed the decision of the delegate of the Minister to not revoke the mandatory cancellation of Mr Karehana’s visa.