Te Hau and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Peter Netana Te Hau, a New Zealand citizen, for the non-revocation of a mandatory visa cancellation decision. The Applicant's visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test. The decision under review affirmed the cancellation.

The court was required to determine whether there was a reason to exercise the discretion under section 501CA of the *Migration Act 1958* (Cth) to revoke the mandatory visa cancellation. This involved considering the principles outlined in Direction No 65, including the risk of re-offending, the risk of harm to the Australian community, the impact on minor children, community expectations, the Applicant's ties to Australia, and the extent of impediments if removed.

The court reasoned that Australia has a sovereign right to determine who remains within its borders and that the community expects non-citizens who commit serious crimes to be refused entry or have their visas cancelled. The Applicant had a history of serious offending, including domestic violence incidents involving significant physical harm and a near-miss with a child, as well as drug and weapon offences. Crucially, the Applicant had received two formal warnings from the Minister regarding potential visa cancellation due to his character, yet he continued to offend after each warning, demonstrating a disregard for the consequences and a pattern of increasing seriousness. The court found that the Applicant's conduct was sufficiently serious to outweigh considerations such as his ties to Australia or the impact on his family.

The court affirmed the decision to cancel the Applicant's visa, finding no reason to exercise the discretion to revoke the mandatory cancellation.