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

This matter concerned an application to review the mandatory cancellation of the Applicant's Subclass 101 Child (Permanent) visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record and being sentenced to a term of imprisonment of 12 months or more. The Applicant sought to have the cancellation revoked under section 501CA of the *Migration Act 1958* (Cth), arguing there was another reason why the visa should not be cancelled. The decision was made by Theodore Tavoularis SM.

The court was required to determine whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked. This involved considering the application of Direction No. 90, which provides a framework for decision-makers when considering mandatory cancellations under section 501 and 501CA of the *Migration Act*. Specifically, the court had to assess the primary and other considerations outlined in the Direction, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, against the Applicant's circumstances.

The court reasoned that Australia has a sovereign right to determine who may enter and remain in the country, and that non-citizens engaging in serious conduct should expect to forfeit the privilege of staying. It applied the principles of Direction No. 90, noting that while Australia may show greater tolerance for criminal conduct by long-term residents, the Applicant's conduct and history were serious. The court found that the Applicant had limited insight into the factors that predisposed him to offend and that his risk of recidivism was unknown and undefined by independent clinical assessment. Consequently, the court concluded that the Applicant represented an unresolved recidivist risk, and the weight attributable to the primary consideration of protecting the Australian community was significant.

The court affirmed the decision to cancel the Applicant's visa, finding that there was no other reason why the cancellation should be revoked. The Applicant's mental health conditions, while requiring ongoing treatment, did not sufficiently mitigate the risk posed to the Australian community, particularly given the lack of insight and the unresolved nature of his recidivist risk.