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

This matter concerned the mandatory cancellation of the Applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant, a citizen of New Zealand who had resided in Australia since infancy, possessed a substantial criminal record, including convictions for armed robbery and assault occasioning bodily harm, for which he was sentenced to five years imprisonment. Following the mandatory cancellation of his visa, the Applicant requested its revocation, which was refused by a delegate of the Respondent. The Applicant then sought review of that decision before the Tribunal.

The legal issues before the Tribunal were whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Act. In determining this, the Tribunal was required to consider the primary considerations outlined in the relevant Direction, specifically the protection of the Australian community, and other considerations. The Tribunal had to assess the nature and seriousness of the Applicant's conduct to date and the risk to the Australian community should he commit further offences.

The Tribunal reasoned that the protection of the Australian community from harm due to criminal activity by non-citizens is a paramount consideration. It noted that remaining in Australia is a privilege for non-citizens, contingent on being law-abiding. The Applicant's criminal history, including serious violent offences, weighed heavily against revocation. The Tribunal considered factors such as the seriousness of the offences, the cumulative effect of repeated offending, and the risk of reoffending. While acknowledging the Applicant's submissions, the Tribunal found that these did not outweigh the imperative to protect the Australian community.

Consequently, the Tribunal concluded that it would not exercise its discretion to revoke the mandatory cancellation of the Applicant's visa. The decision under review was therefore affirmed.