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

The applicant, Mr. Smith, sought judicial review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to affirm the mandatory cancellation of his visa. The dispute arose because Mr. Smith did not pass the character test due to his criminal offending. The matter was heard by Theodore Tavoularis SM.

The primary legal issue before the court was whether there was "another reason" to revoke the mandatory cancellation of Mr. Smith's visa, as contemplated by the relevant provisions of the *Migration Act 1958* (Cth). This required the court to consider Ministerial Direction No. 79, which outlines the factors to be taken into account when making such a decision, particularly concerning the protection of the Australian community.

The court considered Mr. Smith's history of offending, including a serious incident involving a knife and threats, for which he received a custodial sentence. Mr. Smith attempted to re-characterise the circumstances of his offending, suggesting he was provoked or that the narrative presented was inaccurate. However, the court found that Mr. Smith made few concessions regarding the nature and seriousness of his conduct, which spanned almost 25 years. The court noted that Mr. Smith adopted an exculpatory tone and sought to re-cast the circumstances of his offences. In relation to domestic violence matters, Mr. Smith argued they were technical breaches due to a toxic relationship and his desire to remain a stable foundation for his children. The court acknowledged the principle that remaining in Australia is a privilege and that non-citizens are expected to be law-abiding. It found that Mr. Smith's conduct to date and the risk of further offending were significant factors weighing against revocation.

Ultimately, the court concluded that it could not exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review was affirmed.