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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's Class TY Special Category (Subclass 444) Temporary visa. The applicant, a New Zealand citizen who had resided in Australia since childhood, had his visa mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, stemming from multiple convictions including robbery and drug offences, for which he received a total effective sentence of three years imprisonment. The Administrative Appeals Tribunal was required to determine whether there was "another reason" why the visa cancellation decision should be revoked, applying Ministerial Direction No. 79.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there were other reasons to revoke the mandatory visa cancellation. Specifically, the Tribunal had to consider the three primary considerations outlined in Ministerial Direction No. 79: the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal was also required to assess the nature and seriousness of the applicant's conduct, the risk of future offending, and the strength, nature, and duration of the applicant's ties to Australia, as well as the impact on family members and the extent of impediments if removed.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 79. It found that the applicant did not pass the character test due to his substantial criminal record, as defined by s 501(7)(c) of the Act, having been sentenced to terms of imprisonment of 12 months or more. In assessing whether there was another reason to revoke the cancellation, the Tribunal considered the primary considerations. It found that the protection of the Australian community weighed heavily against revocation, given the nature and seriousness of the applicant's offending, including violent and drug-related offences, and the cumulative effect of repeated offending. While acknowledging the applicant's ties to Australia and family members, the Tribunal concluded that these factors were not sufficient to outweigh the primary consideration of community protection. The Tribunal affirmed the decision not to revoke the visa cancellation.