Pihama and Minister for Immigration, Citizenship, Migrant Services 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 38-year-old New Zealand citizen who arrived in Australia at age 27, had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. The applicant sought revocation of this cancellation decision under s 501CA of the Act.

The primary legal issue before the Tribunal was whether there was "another reason" why the decision to cancel the applicant's visa should be revoked, having regard to the primary and other considerations outlined in Direction No. 90. The applicant did not dispute that he failed the character test due to his substantial criminal record, which included convictions for multiple counts of unlawful use of motor vehicles, breach of bail conditions, and a history of offending in New Zealand including family violence. The Tribunal was required to weigh the considerations favouring revocation against those against it, as set out in Direction No. 90.

The Tribunal considered the primary considerations of the protection of the Australian community and the best interests of the applicant's minor child, as well as other considerations such as the strength, nature, and duration of the applicant's ties to Australia, and the expectations of the Australian community. The Tribunal noted that the nature and seriousness of the applicant's offending, including family violence and repeated unlawful use of motor vehicles, were significant factors weighing against revocation. The risk to the Australian community was also a key consideration.

The Tribunal ultimately affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal found that the considerations weighing against revocation, particularly the protection of the Australian community and the seriousness of the applicant's criminal conduct, outweighed the considerations favouring revocation, such as the best interests of his minor child and his ties to Australia.