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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's Subclass 444 Special Category (Temporary) visa. The applicant, a citizen of New Zealand, had his visa mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to failing the character test, specifically by having a substantial criminal record. The applicant sought review of the subsequent decision not to revoke this cancellation.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation of his visa. This involved assessing the nature and seriousness of the applicant's criminal conduct, including convictions for robbery, failing to answer bail, and multiple counts of recklessly causing injury, intentionally damaging property, and committing an indictable offence whilst on bail, for which he received a 12-month prison sentence. The Tribunal was required to consider Ministerial Direction No. 90, which outlines factors relevant to the protection of the Australian community and the seriousness of a non-citizen's conduct.

The Tribunal affirmed the decision not to revoke the visa cancellation. In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 90, particularly clauses 8.1 and 8.1.1, which emphasise the government's commitment to protecting the Australian community from harm and the expectation that non-citizens will be law-abiding. The Tribunal found that the applicant's criminal history, which included violent offences and repeated offending, was serious and presented a risk to the community. While acknowledging the applicant's submissions regarding his family in Australia, the Tribunal concluded that these factors did not outweigh the seriousness of his conduct and the need to protect the Australian community. The Tribunal found no other reason to revoke the mandatory cancellation.