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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of New Zealand who arrived in Australia as a young adult, had a substantial criminal record, including offences such as possession of prohibited drugs, common assault, possessing stolen property, breaches of court orders, and driving offences. The review was heard by Senior Member Dr M Evans-Bonner of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: first, whether the Applicant passed the character test as defined by section 501(6) of the *Migration Act 1958* (Cth); and second, if he did not pass the character test, whether there was another reason to revoke the visa cancellation decision under section 501CA(4) of the Act. In considering these issues, the Tribunal was guided by Direction No 99, which outlines considerations including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength, nature, and duration of the Applicant's ties to Australia, the best interests of any minor child, community expectations, and the legal consequences of removal.

In its reasoning, the Tribunal considered the Applicant's ties to Australia, noting that he had two adult children who had provided letters of support, with his son expressing a desire for a reliable relationship and his father's guidance. The Tribunal also acknowledged the Applicant's residency in Australia since his formative years and his participation in programs such as "Man Up," which suggested positive contributions to the community. However, the Applicant's substantial criminal record was identified as a primary consideration weighing against the revocation of the cancellation decision.

Ultimately, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the visa cancellation. This outcome indicates that, after balancing all relevant considerations, the Tribunal was satisfied that there was another reason to revoke the cancellation decision, despite the Applicant not passing the character test.