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

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal (AAT) for revocation of the mandatory cancellation of his visa, which had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record. The Applicant had been notified of the cancellation on 12 February 2016. The Tribunal was required to consider whether there were reasons to revoke this cancellation in accordance with section 501CA(4)(b)(ii) of the Act, and if so, whether to exercise its discretion to do so.

The central legal issue before the Tribunal was whether the Applicant's circumstances warranted the revocation of the mandatory visa cancellation, having regard to the primary considerations outlined in Direction 65. These primary considerations include the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal was specifically directed to consider the nature and seriousness of the Applicant's past conduct and the risk of future offending.

The Tribunal's reasoning focused on the evidence presented regarding the Applicant's rehabilitation and his ties to Australia. The Applicant testified that his criminal activity was primarily driven by a drug addiction, from which he claimed to have been free for approximately 14 months. He also provided evidence of his improved relationship with his family, particularly his mother and brother, and expressed a desire to live with his brother and join his construction business if permitted to remain in Australia. The Tribunal noted that the Applicant's mother, who had previously lived in New Zealand, did not consider it "home" and had returned to Australia. The Tribunal was required to weigh these factors against the seriousness of the Applicant's criminal record and the need to protect the Australian community.