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

This matter concerned an application for review by Ms Opelu of a delegate's decision to refuse to revoke the mandatory cancellation of her visa. Ms Opelu's visa had been cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because she failed to pass the character test, having a substantial criminal record and serving a custodial sentence of more than 12 months. She subsequently made representations seeking revocation of the cancellation decision. The delegate determined that Ms Opelu failed the character test and that there was no other reason to revoke the cancellation. The Administrative Appeals Tribunal was required to consider whether there was another reason to revoke the cancellation decision, having regard to Ministerial Direction No. 90.

The Tribunal was required to determine the relevance of Ms Opelu's offending conduct as a minor, particularly where no conviction was recorded. Applying the Full Court's decision in *Thornton v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs*, the Tribunal concluded that convictions for offences committed as a minor where no conviction was recorded were not relevant considerations under s 501CA(4) of the *Migration Act*. However, the Tribunal noted that aspects of her conduct as a minor and the factual circumstances of her activities could still be relevant. The central legal issue was the balancing of primary and other relevant considerations under Direction 90, including the protection of the Australian community, family violence, the best interests of minor children, community expectations, impediments to removal, and links to the Australian community, to determine if there was another reason to revoke the visa cancellation.

In its reasoning, the Tribunal weighed various factors. It found that while considerations relating to the protection of the Australian community weighed against revocation, this risk was tolerable and mitigated by Ms Opelu's remorse and rehabilitation efforts, especially given she would remain subject to parole conditions. Family violence considerations did not weigh heavily against revocation, as the most serious incident was a single event mitigated by rehabilitation and remorse. The best interests of her minor children weighed strongly in favour of revocation, as their well-being was served by her return to her family in Australia. Community expectations did not weigh heavily for or against revocation, as concerns about her character record were tempered by the specific circumstances. Impediments to her return to New Zealand weighed lightly in favour of revocation. Crucially, Ms Opelu's strong and enduring links to the Australian community, including her family, cultural, and church communities, weighed strongly in favour of revoking the cancellation decision. On balance, the Tribunal was satisfied that the considerations weighed in favour of revocation.