Rooney and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to affirm the mandatory cancellation of the Applicant's Class TY Subclass 444 Special visa. The Applicant did not pass the character test, and the Minister was required to consider whether there was another reason to revoke the mandatory cancellation. The decision-maker was guided by Ministerial Direction No. 79, which outlines considerations for such decisions.

The primary legal issue before the Tribunal was whether, in light of the Applicant's criminal conduct and personal circumstances, there was another reason to revoke the mandatory cancellation of his visa. This involved assessing Primary Consideration A, the protection of the Australian community, and considering the nature and seriousness of the Applicant's conduct to date, as well as the risk to the community should he reoffend. The Applicant contended that his offending was not at the most serious end of the spectrum and should be viewed in the context of his drug and alcohol addiction, mental health issues, and relationship difficulties.

The Tribunal applied the principles outlined in Ministerial Direction No. 79, which emphasises that remaining in Australia is a privilege for non-citizens and that they are expected to be law-abiding. The Tribunal noted the well-established principle that an administrative decision-maker cannot contradict or go behind the findings of a sentencing court. Relying on the reasoning in *HZCP v Minister for Immigration and Border Protection* [2019] FCAFC 202, the Tribunal held that a high degree of confidence must be afforded to the factual matters that underpin a criminal conviction or sentence, particularly when the convicted person seeks to advance a contrary factual position before an administrative tribunal. The Tribunal found that the Applicant's submissions attempting to recharacterise the circumstances of his offending were impermissible as they sought to contradict the factual foundation upon which his conviction and sentence were based.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa.