SLNY 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 34-year-old man who arrived in Australia at the age of two, had been convicted of an offence involving intent to harm, which resulted in the endangerment of life, safety, or health. The Administrative Appeals Tribunal (the Tribunal) was tasked with determining whether the applicant passed the character test under section 501(6) of the *Migration Act 1958* (Cth) and, if not, whether there was another reason to revoke the mandatory cancellation decision, having regard to the primary and other considerations outlined in Direction No 79.

The Tribunal was required to consider various factors under Direction No 79, including the protection of the Australian community, the nature and seriousness of the criminal offending, the risk to the Australian community, the best interests of minor children, the expectations of the Australian community, and the strength, nature, and duration of the applicant's ties to Australia, as well as the extent of impediments if returned to the United Kingdom. Specifically concerning the best interests of minor children, the Tribunal was directed to consider factors such as the nature and duration of the relationship between the child and the non-citizen, the likelihood of the non-citizen playing a positive parental role, the impact of prior and future conduct on the child, the effect of separation, the existence of other parental figures, the child's views, and any evidence of abuse or neglect.

In its reasoning, the Tribunal found that the first primary consideration, relating to the protection of the Australian community and the nature of the offending, weighed moderately to strongly against revocation. The Tribunal also considered the best interests of the applicant's minor children, including his 14-year-old daughter and 13-year-old son, and his two half-sisters and niece, noting the limited information available regarding some of these individuals. After considering the evidence presented, including oral testimony and various documentary exhibits, the Tribunal found that there was another reason why the decision to cancel the applicant's visa should be revoked. Consequently, the Tribunal set aside the delegate's decision and substituted its own decision.