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

This matter concerned an application for judicial review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to affirm the mandatory cancellation of the Applicant's Special Category (Temporary) (Class TY) (Subclass 444) visa. The Applicant, a New Zealand citizen who had resided in Australia since childhood, did not pass the character test due to a significant history of criminal offending, including violent offences, property offences, and breaches of domestic violence orders. The central dispute revolved around whether there was "another reason" to revoke the mandatory cancellation decision, as contemplated by the *Migration Act 1958* (Cth).

The court was required to determine the appropriate weight to be given to various considerations, particularly in light of Ministerial Direction No. 79, when assessing whether to revoke the mandatory visa cancellation. This involved evaluating the Applicant's extensive criminal history, including the nature and seriousness of his offending, the frequency and cumulative effect of his offences, and the risk posed to the Australian community. The court also had to consider the principles outlined in the Direction regarding the protection of the Australian community and the weight to be afforded to primary and "other" considerations.

In its reasoning, the court applied the principles of Ministerial Direction No. 79, which mandates that decision-makers consider both primary and other considerations, giving them appropriate weight. The court noted that while primary considerations generally attract greater weight, "other" considerations are not necessarily secondary and may, in certain circumstances, be afforded the greatest weight. The court meticulously examined the Applicant's criminal record, highlighting the violent nature of his offending, including a stabbing incident when he was a minor, and his continued offending up to 2019. It also considered an incident of abusive and aggressive behaviour towards detention staff during COVID-19 isolation. The court found that the Applicant's conduct, particularly his violent offending and the risk he posed to the community, weighed heavily against revocation.

Ultimately, the court concluded that it could not exercise the discretion to revoke the cancellation of the Applicant's visa. The decision under review was affirmed.