Mence and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs to refuse to revoke the mandatory cancellation of the applicant's visa under s 501(3A) of the *Migration Act 1958* (Cth). The applicant had failed to pass the character test due to having a substantial criminal record, specifically a sentence of 12 months imprisonment by way of an Intensive Corrections Order for intentionally choking a person with recklessness. The applicant sought to have the cancellation revoked, arguing there was another reason to do so.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, notwithstanding that he failed the character test. This required the Tribunal to consider the considerations outlined in Direction 79, particularly concerning the protection of the Australian community from criminal or other serious conduct. The Tribunal also had to determine the weight to be given to the applicant's offending history and the risk of future offending.

In its reasoning, the Tribunal applied the principles set out in Direction 79, focusing on the nature and seriousness of the applicant's conduct and the risk to the community. The Tribunal noted that while it could not challenge the fact of the conviction or sentence, it could review the circumstances of the conviction for purposes other than impugning it. The Tribunal considered various factors, including the seriousness of violent crimes, crimes against vulnerable persons, the sentence imposed, the frequency and trend of offending, and the cumulative effect of repeated offending. The Tribunal also referred to the High Court decision in *Uelese v Minister for Immigration and Border Protection* [2015] HCA 15 regarding the consideration of evidence.

Ultimately, the Tribunal found that the Minister's delegate's decision to refuse to revoke the visa cancellation was correct. The Tribunal affirmed the decision under review, meaning the applicant's visa remained cancelled.