Te Oka and Minister for Home Affairs (Migration)

The applicant, Te Oka, sought review of a delegate's decision to refuse to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on the applicant failing to pass the character test due to a significant criminal history, including convictions for high-range drink-driving and serious assaults. The applicant had arrived in Australia as a child and had lived there continuously since 1988, attending Australian schools and having established family and social ties. The matter was heard by the Hon. Dennis Cowdroy OAM QC, Deputy President.

The court was required to determine whether the discretion to revoke the mandatory visa cancellation, under section 501CA of the *Migration Act 1958* (Cth), should be exercised. This involved assessing the primary considerations outlined in Direction No. 65, including the protection of the Australian community from criminal or serious conduct, the nature and seriousness of the applicant's conduct, and the risk to the Australian community. The court also had to consider other relevant factors, such as the best interests of minor children, the expectations of the Australian community, and the strength, nature, and duration of the applicant's ties to Australia.

The Deputy President reasoned that while the applicant had demonstrated some positive contributions to the community, such as coaching football, and had significant ties to Australia, including a de facto partner and family, these factors were outweighed by the primary considerations. The applicant's extensive criminal history, particularly the unprovoked serious assaults and repeated drink-driving offences, indicated a propensity for violent conduct, especially when combined with alcohol consumption. Despite previous warnings that his visa was at risk, the applicant continued to offend. The Deputy President found that rehabilitation efforts had been unsuccessful and that there was a significant risk of reoffending, posing a threat to the safety of the Australian community. The opinion of an expert regarding the unlikelihood of reoffending was noted but qualified by the condition of abstaining from alcohol and drugs, a condition the applicant had failed to meet.

Consequently, the Deputy President concluded that the factors favouring the revocation of the visa cancellation did not, either individually or cumulatively, outweigh the primary considerations and the factors weighing against the exercise of discretion. The decision of the delegate was affirmed, and the visa cancellation remained in effect.