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

This case concerned an application for review of a decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, who had been living in Australia since 2014, had his visa mandatorily cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) on the grounds of having a substantial criminal record and failing the character test. This cancellation was based on convictions for fraud offences and domestic violence. The applicant sought review of the delegate's decision not to revoke this cancellation.

The primary legal issue before the Tribunal was whether to revoke the mandatory visa cancellation, considering the factors outlined in subsection 501CA(4) of the *Migration Act* and Direction No. 99. This involved assessing the strength, nature, and duration of the applicant's ties to Australia, the expectations of the Australian community, the impact on victims, and any potential non-refoulement obligations. The Tribunal was required to weigh these considerations against the seriousness of the applicant's offending conduct.

The Tribunal reasoned that while the applicant's fraud offences were serious and attracted community opprobrium, his domestic violence offending occurred within a complex relationship history where he himself had been identified as a person in need of protection. The Tribunal also gave weight to the applicant's meaningful relationships with his nephews and nieces, with whom he had lived and participated in their daily care, and with whom he maintained contact. Despite acknowledging that the community expectations weighed against the applicant due to the nature of his offending, the Tribunal found that the overall assessment of the factors, particularly the impact on the children and the context of the domestic violence, weighed in favour of revoking the visa cancellation.

Consequently, the Tribunal ordered that the reviewable decision be set aside and, in substitution, that the cancellation of the applicant's visa be revoked.