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

This matter concerned an application for review by Mr Robin of the mandatory cancellation of his Class TY Subclass 444 (Special Category Temporary) visa. Mr Robin conceded that he failed the character test, meaning the cancellation was mandatory. The primary dispute before the Tribunal was whether to revoke this mandatory cancellation. A threshold jurisdictional question also arose concerning whether Mr Robin was a "non-citizen non-alien" for the purposes of the *Migration Act 1958* (Cth), which would affect the Tribunal's power to review the decision.

The legal issues before the Tribunal were twofold. Firstly, it had to determine whether Mr Robin qualified as a "non-citizen non-alien" by satisfying the tripartite test established in *Mabo v Queensland (No 2)* and applied in *Love v Commonwealth of Australia; Thoms v Commonwealth of Australia*. This test, concerning biological descent, personal recognition, and recognition by elders, is relevant to the constitutional reach of Parliament's legislative power over "naturalization and aliens." Secondly, if Mr Robin was subject to the *Migration Act*, the Tribunal had to consider whether there was "another reason" to revoke the mandatory visa cancellation, applying the considerations outlined in a ministerial direction. These considerations included the protection of the Australian community from criminal conduct, the nature of any family violence, the best interests of minor children, community expectations, impediments to removal to New Zealand, impact on victims, and links to the Australian community.

The Tribunal found that Mr Robin did not satisfy the tripartite test for being a "non-citizen non-alien," and therefore the *Migration Act* applied to him, confirming its jurisdiction to review the decision. In considering whether to revoke the visa cancellation, the Tribunal weighed the primary considerations. It concluded that a significant incident of criminal conduct, which endangered lives, weighed heavily against revocation, despite being an isolated event. Regarding the best interests of Mr Robin's three minor children, the Tribunal considered each child separately. It noted that his son, AW, was an Australian citizen under the guardianship of the state, with limited contact with his mother and a complex relationship with Mr Robin, who had limited primary care. The Tribunal acknowledged that Mr Robin's removal to New Zealand would likely impact AW, who did not have a mother and was a ward of the state.

The Tribunal affirmed the decision to cancel Mr Robin's visa and decided not to revoke the mandatory cancellation.