Nathanson and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs to refuse to revoke the mandatory cancellation of the applicant's visa. The applicant, a 35-year-old New Zealand national born in Zimbabwe, had his visa cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record and serving a sentence of imprisonment. The Administrative Appeals Tribunal was tasked with determining whether there was another reason why the cancellation decision should be revoked, considering the primary and other considerations outlined in Direction no. 79.

The Tribunal was required to determine two key issues: firstly, whether the applicant passed the character test as defined by s 501(6) of the Act, and secondly, if he did not pass the character test, whether there was another reason to revoke the mandatory cancellation decision under s 501CA(4) of the Act, having regard to the considerations in Direction no. 79. The applicant did not dispute that he failed to pass the character test due to his criminal history.

In its reasoning, the Tribunal found that the applicant did not pass the character test by operation of ss 501(6)(e) and 501(6)(a) of the Act, read with the definition of a substantial criminal record. The Tribunal then considered the primary considerations under Direction no. 79, including the protection of the Australian community and the best interests of the applicant's three minor children. Regarding the risk of reoffending, the Tribunal found a moderate likelihood of reoffending, which, given the nature of his convictions and the harm to the victim, presented an unacceptable risk and weighed against revocation. The Tribunal also considered the best interests of the applicant's children, noting they were all New Zealand citizens and their mother was a South African citizen, and that the applicant had limited meaningful contact with them due to his imprisonment.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It concluded that, on balance, the risk to the Australian community outweighed the considerations in favour of revocation, including the best interests of the children. Therefore, the Tribunal was not satisfied that there was another reason to revoke the mandatory cancellation decision.