Lansdowne and Minister for Home Affairs (Migration)

This matter concerned an application by the applicant, Mr. Eteuati M, for the non-revocation of a mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the applicant failing to pass the character test due to his criminal history. The applicant sought to have the cancellation revoked, arguing there was another reason why it should be set aside. The case was heard by the Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, notwithstanding that he did not pass the character test. This required the Tribunal to consider and apply Ministerial Direction No 79, which sets out the framework for such considerations, particularly concerning the protection of the Australian community from criminal or other serious conduct. The Tribunal also had to determine if the applicant had a substantial criminal record as defined by the *Migration Act 1958* (Cth).

The Tribunal considered evidence including the applicant's criminal convictions from Australia and New Zealand, and numerous character references. It noted that the applicant's offences were not violent or sexual in nature, nor were they committed against vulnerable individuals or government officials. The Tribunal applied the principles outlined in Ministerial Direction No 79, focusing on the nature and seriousness of the applicant's conduct and the risk to the Australian community. Despite character references suggesting the offending was out of character, the Tribunal ultimately found that the Minister's delegate's decision to refuse to revoke the visa cancellation was correct.

The Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.