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

This matter concerned an application by Nolutshungu (the Applicant) to review the non-revocation of a mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa. The Applicant did not pass the character test, and the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) had decided not to revoke the mandatory cancellation. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether there was another reason to revoke the mandatory cancellation decision.

The Tribunal was tasked with considering the Applicant's circumstances in light of Ministerial Direction No. 90, which provides a framework for decision-makers when considering visa cancellations under section 501 of the *Migration Act 1958* (Cth). The Direction outlines principles regarding Australia's sovereign right to determine who remains in the country, the expectation that non-citizens engaging in serious conduct will forfeit their privilege to stay, and Australia's low tolerance for such conduct. The Tribunal was required to assess the primary considerations, including protection of the Australian community, family violence, the best interests of minor children, and community expectations, as well as other considerations such as international obligations, impediments to removal, and links to the Australian community.

In its reasoning, the Tribunal found that the Applicant's unlawful conduct, which included assault occasioning actual bodily harm, aggravated robbery, and involvement in a fraudulent scheme involving hundreds of thousands of dollars, was "very serious." The Tribunal considered the potential harm to the Australian community should the Applicant re-offend, noting that future victims of physical violence could face severe or catastrophic injury, and that negligent driving could expose road users to significant risk. The Tribunal also noted the Applicant's evidence regarding his participation in rehabilitative courses and his stated intention to be a devoted father, but ultimately concluded that these factors were insufficient to outweigh the seriousness of his past conduct and the associated risks.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the Applicant's visa.