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

This matter concerned an application by the Applicant, Tekorona, to the Administrative Appeals Tribunal (Cth) for revocation of a mandatory visa cancellation. The Applicant's visa had been cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he failed to pass the character test, having been convicted of offences including breaking and entering, intentional choke, kidnapping, and destroying and damaging property. The central dispute was whether there was "another reason" why the original decision to cancel the visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Act.

The Tribunal was required to determine whether, in light of Ministerial Direction No. 90, there was another reason to revoke the visa cancellation. This involved weighing various considerations, including the nature and seriousness of the Applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the best interests of the Applicant's minor children, the expectations of the Australian community, the Applicant's ties to Australia, impediments to removal, and the impact on victims. The Applicant's offending conduct involved domestic violence against his former partner, Ms Matapo, including assault and property damage, and the reprehensible act of leaving his two young children unattended on the side of the road.

The Tribunal acknowledged the seriousness of the Applicant's conduct, describing it as impossible to excuse. However, it also gave significant weight to the evidence that the Applicant played a major role in his young children's lives prior to his imprisonment, that he loved them, and that he desired to continue to do so both emotionally and financially, which was clearly in the children's best interests. Crucially, both Ms Matapo and her mother provided unequivocal evidence that they wanted the Applicant to remain in Australia and for the children to have contact with him, despite the domestic violence. The Tribunal accepted the Applicant's evidence that he had learned from his time in prison and wished to move forward positively. It also noted the prospect of a good job that would enable him to provide for his children.

Ultimately, the Tribunal determined that, on balance, the correct or preferable decision was to set aside the delegate's decision to cancel the Applicant's visa and substitute it with a decision to revoke the cancellation. The Tribunal stressed the importance of the Applicant and Ms Matapo taking active steps to address an apprehended violence order (AVO) that prevented contact with the children, to enable the Applicant to have contact with them.