Nancarrow and Minister for Immigration, Citizenship, Migrant Services 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 visa. The applicant, a 20-year-old man who arrived in Australia as a child, had convictions for serious offences including grievous bodily harm and assault occasioning bodily harm, with his offending linked to alcohol use. The Administrative Appeals Tribunal was required to determine whether the applicant passed the character test under section 501(6) of the *Migration Act 1958* (Cth) and, if not, whether there was another reason to revoke the cancellation decision, having regard to the primary and other considerations outlined in Direction No 79.

The Tribunal considered the primary consideration of protecting the Australian community, noting that the serious nature of the applicant's offending meant that even a low likelihood of reoffending was unacceptable. Despite the applicant's low assessed likelihood of reoffending, the nature and seriousness of his conduct weighed heavily against revoking the visa cancellation. The Tribunal also considered the best interests of the applicant's minor nephew, a factor that was given more weight than usual due to the importance of family in Tongan culture and the applicant's potential role as a father figure, notwithstanding the existing parental role of the child's biological father.

The Tribunal ultimately affirmed the delegate's decision not to revoke the mandatory cancellation. It found that while the applicant's ties to Australia were significant and the impediments to his return to New Zealand were considerable, these factors were outweighed by the seriousness of his criminal conduct and the unacceptable risk to the Australian community. The Tribunal concluded that the protection of the Australian community was the paramount consideration and that there was no other reason to revoke the cancellation decision.