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

This matter concerned an application for review of a decision to cancel Mr Murray's Special Category (Temporary) visa (Class TY, Subclass 444) pursuant to section 501(3A) of the *Migration Act 1958* (Cth). Mr Murray, a citizen of New Zealand, had a lengthy criminal history spanning almost 40 years, including multiple sentences of imprisonment. The decision under review was made on 21 June 2021, following a conviction for destroying or damaging property, for which he received a 12-month conditional release order. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the decision to cancel Mr Murray's visa was vitiated by error and, if so, whether there was another reason to revoke the cancellation.

The primary legal issues before the Tribunal were whether Mr Murray passed the character test, and if not, whether there was another reason to revoke the mandatory visa cancellation. In considering these issues, the Tribunal had to determine the correct interpretation of relevant provisions of the *Migration Act*, including sections 501(3A), 501(7), and 501CA, and apply the principles and considerations outlined in Direction No. 90, which governs visa refusal and cancellation decisions. The Tribunal also had to consider conflicting Federal Court decisions regarding the interplay between different sections of the Act concerning visa cancellation and revocation.

The Tribunal found that Mr Murray did not pass the character test due to a previous 12-month sentence of imprisonment, as defined by section 501(7)(c) of the Act. In applying Direction No. 90, the Tribunal considered the protection of the Australian community, the expectations of the Australian community regarding serious criminal conduct, and the specific circumstances of Mr Murray's case, including his long-term relationship with an Australian citizen and his partner's family. The Tribunal noted that while Mr Murray's conduct, particularly family violence for which his partner was the victim, was serious, it also considered the extent of his impediments if removed from Australia and his links to the Australian community.

Ultimately, the Tribunal determined that the 2021 cancellation decision should be revoked. The Tribunal found that, despite Mr Murray not passing the character test, there was another reason to revoke the cancellation, taking into account the specific factors of his case and the principles set out in Direction No. 90. The decision to cancel Mr Murray's visa was set aside.