O’Dowd and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to affirm the mandatory cancellation of the applicant's Special Category (Class TY) (Subclass 444) visa. The applicant, a New Zealand citizen who had resided in Australia since childhood, did not pass the character test due to criminal offending. The core dispute revolved around whether there was "another reason" to revoke the mandatory cancellation decision, as contemplated by the *Migration Act 1958* (Cth).

The court was required to determine whether the Tribunal had erred in law by failing to properly consider the applicant's circumstances in light of Ministerial Direction No. 79, specifically concerning the best interests of her minor children and the expectations of the Australian community. The applicant argued that the Tribunal had given insufficient weight to the best interests of her children and had not adequately considered the nuances of community expectations in her case.

The court's reasoning focused on the application of Ministerial Direction No. 79, which outlines considerations for visa cancellation decisions. The Tribunal had acknowledged the best interests of the applicant's minor children as a factor weighing in favour of revocation but ultimately found that this did not outweigh the considerations favouring non-revocation, particularly the protection of the Australian community. The court examined the Tribunal's assessment of the applicant's criminal conduct and the risk posed to the community, as well as its consideration of community expectations, noting that Australia has a low tolerance for criminal conduct by non-citizens. The court affirmed the Tribunal's conclusion that the applicant's offending, including a substantial criminal record and serving a custodial sentence, meant that the mandatory cancellation of her visa should not be revoked.