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

This case concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of Tonga who had resided in Australia since 1990, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record, specifically being sentenced to a term of imprisonment of 12 months or more. The applicant subsequently sought revocation of this cancellation, but a delegate of the Minister decided not to revoke it. The applicant then sought review of that decision in the Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, as permitted by section 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the factors outlined in Ministerial Direction 79, which governs decisions on visa refusal and cancellation under section 501 and the revocation of mandatory cancellations under section 501CA. The applicant conceded that he did not pass the character test, meaning the only avenue for relief was to establish another reason for revocation.

In its reasoning, the Tribunal applied the principles set out in Direction 79, particularly those concerning the protection of the Australian community from criminal or other serious conduct. This involved assessing the nature and seriousness of the applicant's conduct and the risk to the community. While the applicant did not pass the character test, the Tribunal was satisfied, after taking into account all relevant provisions and considerations under Direction 79, that there was indeed another reason to revoke the visa cancellation.

Consequently, the Tribunal set aside the decision under review and substituted it with a decision that the cancellation of the applicant's visa pursuant to section 501(3A) of the *Migration Act 1958* (Cth) be revoked under section 501CA(4)(b)(ii) of the Act.