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

This matter concerned an appeal by Mr Ornelas against the decision of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of his visa. Mr Ornelas' visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, which meant he failed the character test. Mr Ornelas made representations seeking revocation, which were refused by a delegate of the Minister. The Administrative Appeals Tribunal was required to review this refusal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation, despite Mr Ornelas failing the character test. This required the Tribunal to consider Ministerial Direction No. 90, which outlines the primary and other relevant considerations to be taken into account. These included the protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, Mr Ornelas' personal circumstances such as his mental illness and impediments to his removal, and his links to the Australian community.

The Tribunal acknowledged the seriousness of Mr Ornelas' extensive criminal history, which spanned over 20 years and included drug offences, property offences, assaults, and violence against women and family violence. It noted that while his offending occurred during periods of psychosis or intoxication, this did not reduce his culpability. The Tribunal found a real risk of reoffending if Mr Ornelas did not maintain treatment for his schizophrenia and substance use disorder. However, it also considered Mr Ornelas' claims of reformation, his stated desire to abstain from drugs and alcohol, his insight into his mental health conditions, and his strong motivation to change, including reconnecting with his family. The Tribunal found that given Mr Ornelas had spent most of his life in Australia, a higher level of risk could be tolerated.

Ultimately, the Tribunal concluded that while considerations of community protection weighed against revocation, the balance of considerations, including Mr Ornelas' personal circumstances and demonstrated motivation for change, weighed in favour of revocation. The Tribunal set aside the delegate's decision and substituted it with a decision to revoke the cancellation of Mr Ornelas' visa.