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

This matter concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the mandatory cancellation of the Applicant's Class BS Subclass 801 Partner visa. The Applicant did not pass the character test due to his criminal history, which included convictions for contravening a domestic violence order and indecent treatment of a child. The central dispute revolved around whether there was "another reason" to revoke the mandatory cancellation decision, considering Ministerial Direction No. 90.

The court was required to determine whether the Applicant's criminal conduct was so serious that even strong countervailing considerations would be insufficient to justify revoking the mandatory cancellation. Specifically, the court had to assess the nature and seriousness of the Applicant's offending, the risk to the Australian community should he re-offend, and the extent of any rehabilitation achieved. The court also considered the primary and other considerations outlined in Ministerial Direction No. 90, including the protection of the Australian community, family violence, the best interests of minor children, community expectations, and non-refoulement obligations.

In its reasoning, the court found the Applicant's conduct to be "very serious," particularly the indecent treatment of a child and the contravention of a domestic violence order. The court noted the severe psychological harm suffered by the victim of the indecent treatment, as evidenced by sentencing remarks and a victim impact statement. The court also observed that the Applicant had not demonstrated significant rehabilitation, making vague references to a domestic violence course without detailing its benefits. Consequently, the court concluded that the risk of harm to individuals and the Australian community if the Applicant were to re-offend was substantial and potentially catastrophic.

The court affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa. The court found that the Applicant's criminal conduct was of such a serious nature that it outweighed any countervailing considerations, and therefore, there was no "another reason" to revoke the mandatory cancellation.