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

This matter concerned an application by Mr. Smith for a review of the Administrative Appeals Tribunal's decision to affirm the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth). Mr. Smith's visa had been cancelled due to his substantial criminal record, and the delegate of the Minister had subsequently found that he did not pass the character test and that there was no other reason to revoke the cancellation.

The primary legal issues before the court were whether Mr. Smith passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation of his visa. This required the court to consider the application of Direction No. 79, which outlines the primary and other considerations relevant to such decisions, including the protection of the Australian community, the best interests of minor children, and community expectations, as well as other factors such as the strength of ties to Australia and impediments to removal.

The court's reasoning focused on the application of Direction No. 79 to Mr. Smith's circumstances. It acknowledged his extensive criminal history, including numerous convictions for offences such as assault, obstructing police, and drug and property offences, noting the cumulative effect of his reoffending and the risk posed to the Australian community. While recognising Mr. Smith's long period of residence in Australia (36 years), his age on arrival, his work history, and his care for his mother as mitigating factors, the court ultimately found that these did not outweigh the primary considerations. The court also considered the impact of a previous decision not to cancel Mr. Smith's visa in 2013, distinguishing the current cancellation under section 501(3A) from the provisions considered in *Minister for Immigration and Border Protection v Makasa*, which dealt with section 501(2).

The court affirmed the decision of the Administrative Appeals Tribunal, meaning Mr. Smith's visa remained cancelled.