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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to having a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. The sole issue before the Tribunal was whether there was another reason why the original decision to cancel the visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether it was satisfied that another reason existed to revoke the visa cancellation, considering the factors outlined in Ministerial Direction No. 90. These primary considerations included the protection of the Australian community from criminal or other serious conduct, whether the conduct engaged in constituted family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Other relevant considerations included international non-refoulement obligations, the extent of impediments if removed, the impact on victims, and the Applicant's links to the Australian community, including the strength, nature, and duration of those ties and any impact on Australian business interests.

In its reasoning, the Tribunal acknowledged evidence suggesting a positive change in the Applicant's character since his imprisonment and detention, supported by testimonials from his former and present partners and family. It accepted that the Applicant possessed a loving, caring, sensitive, and generous side. However, despite these countervailing factors, the Tribunal found that the Applicant's past serious behaviour, particularly his recent offending in 2016 and concerning behaviour while in custody, substantially outweighed these positive considerations. The Tribunal assessed that there was a real risk of future offending, likely to include violence, and that this risk, combined with past offending, powerfully outweighed all other factors favouring revocation.

Consequently, the Tribunal was not satisfied that there was another reason why the original decision to cancel the Applicant's visa should be revoked. The decision under review was affirmed.