Lemalu and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision to refuse to revoke the mandatory cancellation of the Applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant had failed to pass the character test due to a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The Applicant sought to have the cancellation revoked, arguing there was another reason to do so.

The primary legal issue before the Tribunal was whether there was any other reason to revoke the mandatory cancellation of the Applicant's visa, notwithstanding that he failed to pass the character test. This required the Tribunal to consider the considerations outlined in Direction 79, particularly the protection of the Australian community from criminal or other serious conduct, and the Applicant's character. The Tribunal also had to determine the nature and seriousness of the Applicant's conduct, including his criminal history and any risk he posed to the community.

The Tribunal reasoned that the Applicant's offending history, which included attempted robbery using violence and two armed robberies against vulnerable members of the community, was serious. The Tribunal noted that crimes committed against individuals working at night in convenience stores and as taxi drivers were viewed very seriously by the courts. Furthermore, the Applicant had a history of failing to appear before court and breaching bail conditions, and had committed violent disciplinary breaches while in prison. The Tribunal considered the various letters provided by the Applicant's family, church, and former employer, but found that these did not outweigh the seriousness of his conduct and the risk he posed to the Australian community.

Consequently, the Tribunal affirmed the delegate's decision to refuse to revoke the mandatory cancellation of the Applicant's visa.