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

This matter concerned an application by Mr Ngata for the non-revocation of a mandatory visa cancellation. Mr Ngata's visa had been cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, specifically due to having a substantial criminal record under s 501(7). The Administrative Appeals Tribunal (the Tribunal) was tasked with determining whether there was another reason to revoke the mandatory cancellation, considering the principles outlined in Ministerial Direction No. 79.

The Tribunal was required to consider several legal issues, including the primary considerations of protecting the Australian community from criminal or other serious conduct, the best interests of minor children, and the expectations of the Australian community. It also had to consider other relevant considerations. The Tribunal had to assess the nature and seriousness of Mr Ngata's conduct, the risk he posed to the Australian community, and the impact of his potential removal on his minor children and his current partner.

In its reasoning, the Tribunal found Mr Ngata's offending, which involved recklessly inflicting grievous bodily harm and common assault, to be very serious, particularly given his capacity as a trained fighter. While acknowledging his early guilty plea and the merciful nature of his sentence, the Tribunal noted that his acts of violence were sufficiently damaging. Regarding the risk to the community, the Tribunal considered evidence from a clinical psychologist, Dr Danielle Clout, who opined that Mr Ngata no longer posed a risk of reoffending and had good insight into his behaviour. However, the Tribunal also had to weigh this against the seriousness of the original offending. The Tribunal also considered the best interests of Mr Ngata's two young children with his current partner, and the impact on his current partner, as well as the significant emotional and financial support he provided to his two eldest sons from a previous relationship.

Ultimately, the Tribunal affirmed the decision to refuse to revoke the mandatory visa cancellation. The Tribunal concluded that, despite the evidence of rehabilitation and the best interests of the children, the primary consideration of protecting the Australian community from serious criminal conduct weighed heavily against revocation.