Tahuriorangi and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a New Zealand citizen who had resided in Australia since childhood, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he failed the character test and was serving a full-time prison sentence for an offence against Australian law. The delegate subsequently refused to revoke this cancellation. The applicant sought review of that refusal by the Tribunal.

The primary legal issue before the Tribunal was whether the discretion under section 501CA(4) of the Act should be exercised to revoke the mandatory visa cancellation. This required the Tribunal to consider two sub-issues: first, whether the applicant passed the character test as defined in section 501 of the Act; and second, whether there was another reason why the mandatory cancellation decision should be revoked. The Minister contended that the applicant did not pass the character test and that no other reason justified revocation.

In determining whether to exercise the discretion to revoke, the Tribunal was guided by principles set out in Paragraph 6.3 of the Direction, which emphasise Australia's sovereign right to control the entry and presence of non-citizens, the expectation that non-citizens will be law-abiding, and the community's expectation that serious offenders will be removed. The Tribunal considered the protection of the Australian community from criminal conduct, assessing the nature and seriousness of the applicant's past offending and the risk of future harm. The Tribunal found the cumulative effect of the applicant's offending history, which involved significant involvement in drug trafficking and supply, to be very serious. It concluded that any resumption of such conduct would pose a significant risk of serious physical and psychological harm to the Australian community, including the potential for injury or death.

The Tribunal agreed with the Minister's delegate that the applicant's offending was very serious and that the risk of future harm was significant. Consequently, the Tribunal found that the discretion under section 501CA(4) of the Act should not be exercised in favour of revoking the mandatory cancellation of the applicant's visa.