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

This matter concerned an appeal by a German citizen (the applicant) against the delegate's decision not to revoke the mandatory cancellation of his Class BF transitional (permanent) visa. The visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because the applicant did not pass the character test due to having a substantial criminal record, including convictions for assault and contravening an apprehended violence order. The applicant sought revocation of the cancellation decision under section 501CA(4) of the Act.

The legal issues before the court were whether the delegate had erred in their assessment of the factors relevant to the revocation decision, particularly in light of Direction No. 79, which governs such decisions. The court was required to determine if the delegate had adequately considered the primary considerations, namely the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community, as well as other relevant considerations such as the strength, nature, and duration of the applicant's ties to Australia and the extent of impediments if removed.

The court reasoned that while the applicant's criminal conduct was serious and involved violence, the delegate had failed to give sufficient weight to the countervailing considerations. Specifically, the court found that the delegate had not adequately considered the applicant's long-standing ties to Australia, his contributions to the community, and the potential impact of his removal on his minor children who were Australian citizens. The court applied the principles outlined in Direction No. 79, which require a holistic assessment of all relevant factors, and found that the delegate's decision had not properly balanced the need to protect the community against the individual circumstances of the applicant.

The court set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the applicant's visa.