NHBK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's (NHBK) visa. NHBK, a New Zealand citizen, had her visa cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) following a conviction and sentence of 21 months imprisonment for assault in company occasioning actual bodily harm, which resulted in a non-parole period exceeding 12 months. This conviction meant she was deemed to have a substantial criminal record and therefore did not pass the character test.

The Tribunal was required to determine whether there was "another reason" to exercise the discretion to revoke the mandatory visa cancellation under subsection 501CA(4) of the *Migration Act*. This involved considering Ministerial Direction No. 90, which outlines the primary and other considerations to be taken into account. Key issues included the protection of the Australian community, the nature and seriousness of NHBK's offending conduct, the likelihood of reoffending, and the best interests of any minor children affected by the decision.

In its reasoning, the Tribunal noted that NHBK's criminal record, while extensive, was largely devoid of violent offending until the incident that triggered the mandatory cancellation. The Tribunal accorded minimal weight to her convictions as a minor in New Zealand. It also considered NHBK's claims regarding her role in caring for her nephew and nieces, who were under 18, and the impact of her detention on them. However, the Tribunal found that the applicant's claimed relationship to these children and the carer role she asserted were contested and critical to the assessment of their best interests. The Tribunal also considered NHBK's ties to the Australian community, including her continuous residence since the age of 18 and her relationships.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation. It found that the primary considerations, particularly the protection of the Australian community from harm due to criminal activity, weighed heavily against revocation. While acknowledging the best interests of children as a primary consideration, the Tribunal found that the contested nature of NHBK's parental role and the seriousness of her offending conduct meant that this consideration did not outweigh the public interest in protecting the community.