Malla and Minister for Home Affairs (Migration)

This matter concerned an application by Dipendra Malla (the Applicant) to revoke the mandatory cancellation of his Bridging visa, which had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he failed to pass the character test. The Minister for Home Affairs (the Respondent) opposed the application. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether there was another reason why the cancellation decision should be revoked.

The Tribunal was tasked with assessing whether the Applicant passed the character test, which involved examining his criminal history. The Applicant had a significant offending history, including convictions for common assault (DV), assault occasioning actual bodily harm (DV), and driving offences, with some sentences involving terms of imprisonment of 12 months or more. The Tribunal also had to consider the primary considerations outlined in Direction No. 79, specifically the protection of the Australian community from criminal or other serious conduct, and the expectations of the Australian community.

In its reasoning, the Tribunal acknowledged the seriousness of the Applicant's offending, particularly violent crimes against women and children, and noted a real risk of reoffending. However, the Tribunal also gave significant weight to the best interests of the Applicant's minor son, the strength of his ties to Australia, and the hardship he would face if removed. Crucially, the Tribunal considered the Applicant's former partner's strong desire for him to remain in Australia to fulfil his parental role and provide financial support for their son, and her willingness to bear any risk he might present to her safety.

Ultimately, the Tribunal found that there was another reason why the cancellation decision should be revoked. The Tribunal set aside the decision refusing to revoke the cancellation and substituted a decision revoking the original cancellation of the Applicant's visa.