MGMZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant failed the character test due to having a substantial criminal record, having been sentenced to a total effective sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 3 months, for common assault and recklessly causing serious injury involving the use of a heavily bladed weapon. The applicant sought to have the visa cancellation revoked under section 501CA(4)(b) of the Migration Act 1958 (Cth), arguing there was "another reason" why the cancellation should be revoked.

The Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, considering the principles and considerations outlined in Direction No. 99. This involved assessing various factors, including the strength, nature, and duration of the applicant's ties to Australia, the best interests of his minor children, the extent of impediments he might face if removed, and the expectations of the Australian community regarding serious criminal conduct, particularly family violence. The Tribunal also had to consider the legal consequences of its decision, including any non-refoulement obligations.

In its reasoning, the Tribunal applied the framework set out in Direction No. 99, which emphasises Australia's sovereign right to determine who may remain in the country and the expectation that non-citizens will be law-abiding. The Tribunal noted the seriousness of the applicant's offending, particularly the use of a bladed weapon and the impact on his family, and found that these factors weighed heavily against revocation. While acknowledging the applicant's ties to Australia and his family responsibilities, the Tribunal concluded that these countervailing considerations were insufficient to justify revoking the mandatory cancellation, especially in light of the nature of the offending and the community's expectations regarding protection from harm. The Tribunal found no evidence of non-refoulement obligations.

The Tribunal affirmed the decision of the delegate and therefore affirmed the mandatory cancellation of the applicant's visa.