Tanehohaia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of New Zealand who arrived in Australia as a teenager, had a substantial criminal record, including offences involving prohibited drugs, assault, family violence, property damage, and breaches of suspended imprisonment orders. The Minister's delegate had cancelled the Applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth) due to the Applicant failing the character test. The Applicant sought revocation of this decision under section 501CA(4) of the Act.

The Federal Court was required to determine two key issues: first, whether the Applicant passed the character test as defined by section 501(6) of the *Migration Act*; and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked. In considering the revocation, the Court was directed to apply Direction No 99, which outlines primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength and duration of ties to Australia, the best interests of minor children, community expectations, and the legal consequences of removal.

The Court found that the primary consideration under Direction No 99, namely the expectations of the Australian community, weighed strongly against revoking the cancellation decision. The Court noted that the Applicant would likely be removed to New Zealand and face restrictions on re-entry to Australia. The Court also considered the legal consequences of the decision, including the Applicant's liability for removal and potential detention, as well as Australia's non-refoulement obligations, although these were not raised by the Applicant.

The Court ultimately set aside the delegate's decision and substituted its own decision. The specific outcome of this substitution was not detailed in the provided text.