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

This matter concerned an appeal by the Applicant, a Fijian citizen, against the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth) due to failure to pass the character test. The Applicant had resided in Australia since 1987, holding various visas, including a Spouse visa and a Resident Return visa. His criminal history, spanning from 1998 to 2021, included numerous driving offences, multiple convictions for driving with a prescribed concentration of alcohol, driving while disqualified, and other traffic infringements. More recently, he was convicted of possessing an unauthorised pistol and cannabis.

The primary legal issue before the Tribunal was whether there was "another reason" why the Applicant's visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This required the Tribunal to consider Ministerial Direction No. 90, which outlines various factors to be weighed, including the nature and seriousness of the offending conduct, the risk of reoffending, the protection of the Australian community, the strength, nature, and duration of ties to Australia, and impediments to removal.

The Tribunal reasoned that while the Applicant had a lengthy and concerning criminal history, including recent serious offences, the specific circumstances of the pistol possession charge were mitigated by the magistrate's decision to place him on a Community Corrections order rather than imposing a custodial sentence. Furthermore, the Tribunal considered the Applicant's established ties to Australia, including family relationships, and noted that while he had a history of drug and alcohol misuse, reports indicated a medium to low risk of reoffending and some reflection on his past conduct. Weighing these factors against the risk to the community, the Tribunal concluded that there was another reason to revoke the cancellation.

Consequently, the Tribunal set aside the original decision to cancel the Applicant's visa and substituted it with a new decision revoking the cancellation. This meant the Applicant's visa was no longer cancelled under section 501(3A) of the *Migration Act 1958* (Cth).