Kumeroa and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Kumeroa for review of a decision by the Minister for Home Affairs to cancel his Special Category (Temporary) (Class TY) (Subclass 444) visa. The cancellation was based on Mr Kumeroa failing to pass the character test. The Deputy President of the Administrative Appeals Tribunal was required to consider various factors under Direction No. 65, including the protection of the Australian community, the best interests of Mr Kumeroa's child, and the expectations of the Australian community.

The legal issues before the Tribunal included whether the protection of the Australian community weighed in favour of Mr Kumeroa, the extent to which his child's best interests supported revocation of the visa cancellation, and how to interpret the consideration of "expectations of the Australian community" in light of existing case law. The Tribunal also had to consider other relevant matters, such as international non-refoulement obligations, Mr Kumeroa's ties to Australia, the impact on victims of his offending, and the impact of his mental health.

The Deputy President reasoned that the consideration of the expectations of the Australian community should be treated as a deeming provision, following the approach of Mortimer J in *YNQY v Minister for Immigration and Border Protection*. This meant that this consideration, in itself, favoured affirming the reviewable decision. While Mr Kumeroa had a son in Australia, whose best interests favoured revocation of the cancellation, the Deputy President found that Mr Kumeroa's contact with his son had been spasmodic and limited. The Tribunal noted no international non-refoulement obligations applied and that Mr Kumeroa had minimal ties to Australia beyond his son. The Deputy President expressed sympathy for Mr Kumeroa's situation and doubts about the adequacy of his medical treatment, but ultimately concluded that the evidence did not warrant setting aside the decision to obtain a further psychiatric report, as any potential benefit from medication was speculative.

On balance, the Deputy President found that the express provisions of Direction No. 65 favoured Mr Kumeroa's return to his home country. The Tribunal affirmed the reviewable decision to cancel Mr Kumeroa's visa.