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

This matter concerned an application for revocation of a mandatory visa cancellation made by the Applicant, a 36-year-old dual citizen of New Zealand and South Africa, who had been ordinarily resident in Australia since 1997. The Applicant’s visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) following his conviction on two counts of aggravated assault occasioning bodily harm and breach of a suspended imprisonment order, for which he received a total of 21 months imprisonment. The Applicant conceded that he did not pass the character test due to his substantial criminal record.

The central legal issue before the Tribunal was whether there was "another reason" to exercise the discretion under section 501CA(4) of the Act to revoke the mandatory visa cancellation. This required the Tribunal to consider the primary considerations outlined in Direction 79, specifically the protection of the Australian community from criminal or other serious conduct, and to weigh this against other factors, such as the best interests of any children involved, and the strength, nature, and duration of the Applicant's ties to Australia.

The Tribunal reasoned that while the case was finely balanced, the considerations weighing against revocation, particularly the protection of the Australian community, outweighed those in favour. The Tribunal noted the nature and seriousness of the Applicant's conduct, including multiple prior convictions and sentences of imprisonment, and assessed the risk to the Australian community should further offences be committed. After undertaking a balancing exercise, the Tribunal concluded that there was not another reason why the original decision to cancel the visa should be revoked.

Consequently, the Tribunal affirmed the decision of a delegate of the Respondent, dated 20 May 2020, not to revoke the mandatory cancellation of the Applicant’s visa.