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

This matter concerned an application to the Administrative Appeals Tribunal (the Tribunal) for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant's visa was cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, having a substantial criminal record due to a sentence of 12 months imprisonment. The Applicant sought revocation of this cancellation under subsection 501CA(4) of the Act.

The Tribunal was required to determine whether there was another reason why the original decision to cancel the Applicant's visa should be revoked, as the Applicant did not pass the character test. In considering this, the Tribunal was bound by Ministerial Direction No. 90, which requires decision-makers to have regard to the protection of the Australian community from criminal or other serious conduct, assessing both the nature and seriousness of the non-citizen's conduct to date and the risk of future offending. The Tribunal also had to consider the best interests of the Applicant's minor children and any evidence of family violence.

The Tribunal considered the Applicant's criminal history, which included convictions for offences such as possessing a restricted substance, resisting an officer, using offensive language, destroying property, and high-range drink-driving, assault of a police officer, and stalking/intimidation, which resulted in a suspended sentence of nine months imprisonment. More recently, in July 2021, the Applicant was sentenced to 12 months imprisonment for an assault occasioning bodily harm, which involved domestic violence against his partner. The Tribunal noted the Applicant's partner's evidence that his mental health issues and past trauma contributed to his offending, and that he had been a primary caregiver for their children. However, the Tribunal also acknowledged the Applicant's ongoing drug use, which his partner stated he only ceased upon imprisonment, and the significant risk posed to the Australian community by his criminal conduct.

Ultimately, the Tribunal was not satisfied that there was another reason why the mandatory cancellation of the Applicant's visa should be revoked. The Tribunal found that the protection of the Australian community from criminal conduct was a primary consideration and that the Applicant's criminal history, particularly the domestic violence offence, presented a significant risk. While acknowledging the best interests of the children and the Applicant's role as a caregiver, these factors were not considered sufficient to outweigh the need for community protection. Therefore, the Tribunal affirmed the delegate's decision not to revoke the visa cancellation.