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

This matter concerned an application by Shane Rangi Moore for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Special Category (Class TY) (Subclass 444) visa. Mr Moore, a New Zealand citizen, had been in Australia since 2009. His visa was cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record. Following a variation in his sentence, Mr Moore no longer met the criteria for mandatory cancellation under that specific subsection, but it was agreed he still failed the character test under subsection 501(4) due to his criminal record. The Administrative Appeals Tribunal (the Tribunal) was therefore required to consider whether there was another reason to revoke the original cancellation decision.

The primary legal issue before the Tribunal was whether to revoke the mandatory visa cancellation, as Mr Moore conceded he did not pass the character test. This required the Tribunal to consider whether there was "another reason" to revoke the cancellation under paragraph 501CA(4)(b) of the Act. In determining this, the Tribunal was guided by Ministerial Direction No. 79, which mandates consideration of primary factors including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. Other relevant considerations, such as the strength, nature, and duration of ties to Australia and the extent of impediments if removed, were also to be taken into account.

The Tribunal's reasoning focused on weighing the factors for and against revocation. Mr Moore's criminal history, including assaults and property damage, was detailed, with particular attention paid to a serious assault on a minor. However, the Tribunal also considered Mr Moore's ties to Australia, his age, and the fact that he had been in Australia since childhood. After considering all the primary and other relevant considerations, the Tribunal concluded that the factors favouring Mr Moore retaining his visa outweighed the reasons for not revoking the cancellation.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of Mr Moore's visa, thereby allowing him an opportunity to remain in Australia.