Subasinghe and Minister for Home Affairs (Migration)

The case of *Subasinghe and Minister for Home Affairs (Migration)* concerned an application for review of a decision to affirm the mandatory cancellation of the applicant's visa. The applicant, a Sri Lankan national, had been granted a visa in 2008 and had resided in Australia with his wife and Australian citizen son since that time. The dispute arose following the applicant's conviction for seven counts of sexual penetration, which led to the mandatory cancellation of his visa under s 501(3A) of the *Migration Act 1958* (Cth). The applicant sought revocation of this cancellation under s 501CA(4) of the Act.

The primary legal issue before the court was whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by s 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This required the court to consider the application of Ministerial Direction No. 79, which provides guidance on visa refusal and cancellation, and the revocation of mandatory cancellations. Specifically, the court had to determine how the considerations outlined in Direction 79, particularly those relating to the protection of the Australian community and the strength of the applicant's ties to Australia, weighed in the decision to revoke the cancellation.

The court's reasoning focused on the principles set out in Direction 79, which mandates that decision-makers must consider the protection of the Australian community from criminal or serious conduct. This involves assessing the nature and seriousness of the non-citizen's conduct and the risk of future harm. The Direction also requires consideration of the strength, nature, and duration of ties to Australia, as well as the extent of impediments to removal. In this instance, the court noted that violent and sexual crimes are viewed very seriously under the Direction. The court was required to balance these considerations against factors such as the applicant's family ties in Australia, his business interests, and his brother's Australian citizenship.

The court affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.