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

This matter concerned an application by Mr Mejias Gallardo to review the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to cancel his visa under section 501(2) of the *Migration Act 1958* (Cth) on the grounds that he did not pass the character test. The Administrative Appeals Tribunal was required to consider whether the discretion not to exercise the power to cancel the visa, pursuant to section 501A(d) of the Act, should be exercised, having regard to Ministerial Direction No. 79.

The primary legal issue before the Tribunal was to determine the weight to be given to the protection of the Australian community, as mandated by Primary Consideration A of Ministerial Direction No. 79, and to assess the risk of the applicant reoffending. This involved evaluating the nature and seriousness of the applicant's past conduct, including his criminal history, and the potential risk to the community should he commit further offences. The Tribunal also had to consider the applicant's personal circumstances, his insight into his past offending, and any steps taken towards rehabilitation.

The Tribunal's reasoning focused on the evidence presented, particularly the report and oral evidence of a consultant psychologist, Mr Tim Watson-Munro. Mr Watson-Munro assessed the applicant as co-operative, severely depressed and anxious, but noted significant maturation and improved impulse control since his last domestic violence incident in 2009. He highlighted the applicant's stable employment, positive relationship, and expressed desire for a life free from offending, concluding that the risk of reoffending was low, especially with structured support and treatment. In contrast, the delegate's decision, made without the benefit of expert psychological assessment, had expressed concerns about the applicant's insight into the impact of his offending on victims and noted recent drink-driving convictions as indicative of a disregard for the law. The Tribunal ultimately found that the applicant's history of violent offending against domestic partners was serious, but that the evidence of maturation, stable relationships, employment, and the expert opinion on low reoffending risk weighed in favour of exercising the discretion not to cancel the visa.

The Tribunal set aside the delegate's decision and substituted a new decision, exercising the discretion under section 501A(d) of the *Migration Act 1958* not to cancel Mr Mejias Gallardo's visa.