Sach and Minister for Home Affairs (Migration)

The case of *Sach and Minister for Home Affairs (Migration)* concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 52-year-old United Kingdom citizen who had resided in Australia since the age of seven, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically for offences resulting in imprisonment for more than 12 months. The applicant had previously been issued a formal warning in 2012 for unlawful assault with circumstances of aggravation, and subsequently received further sentences for threat with intent to prevent/hinder an act and common assault. The Federal Court had previously quashed an Assistant Minister's decision not to revoke the cancellation, remitting the matter for reconsideration.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was another reason why the visa cancellation decision should be revoked. In considering revocation, the Tribunal was required to apply Ministerial Direction 79, which outlines the framework for assessing visa refusal, cancellation, and revocation decisions, with a strong emphasis on protecting the Australian community from harm. The Direction distinguishes between primary and other considerations, with primary considerations generally carrying greater weight.

The Tribunal's reasoning focused on applying the principles within Direction 79. It acknowledged that the applicant's long residence in Australia since childhood might afford a higher level of tolerance from the Australian community, as per Principle 5 of Direction 79. However, this was weighed against the severe and persistent nature of the applicant's offending throughout his adult life and the continuing risk he posed to the community. The Tribunal considered the strength, nature, and duration of the applicant's ties to Australia, noting that while he had lived there for an extended period, his history of offending and limited positive community involvement diminished the weight of this factor. The applicant's claims of employment and family links were also scrutinised, with the Respondent arguing that a lack of independent evidence and limited contact with family meant these factors did not outweigh the primary considerations against revocation. The Tribunal also considered the impact on victims, noting that while the applicant's former partner sought his support, her evidence did not acknowledge his domestic violence offending, thus limiting its weight.

Ultimately, the Tribunal found that the primary considerations, particularly the protection of the Australian community from the risk of future harm posed by the applicant's criminal conduct, weighed heavily against revocation. The Tribunal set aside the delegate's decision and substituted its own decision not to revoke the mandatory visa cancellation.