Thornton and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Thornton, a citizen of New Zealand, to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The Minister for Immigration, Citizenship and Multicultural Affairs had cancelled the visa due to Thornton failing to pass the character test, specifically because he had a substantial criminal record. The case was heard by Dr L Bygrave, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine two issues: firstly, whether Thornton passed the character test under section 501 of the *Migration Act 1958* (Cth), and secondly, if he did not pass the character test, whether there was another reason to revoke the mandatory cancellation of his visa. The Tribunal considered Ministerial Direction No. 99, which provides guidance on the exercise of discretion in such matters.

The Tribunal found that Thornton did not pass the character test as he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more for an offence of recklessly causing injury. In considering whether there was another reason to revoke the cancellation under section 501CA(4) of the Act, the Tribunal referred to the principles outlined in Direction No. 99. These principles emphasise Australia's sovereign right to determine who may remain in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that visas will be cancelled for those who raise serious character concerns. The direction also notes that a higher tolerance for criminal conduct may be afforded to non-citizens who have lived in Australia for most of their life or from a very young age, with tolerance increasing with the length of time spent in the community, particularly during formative years. However, the Tribunal noted that certain conduct may be so serious that even strong countervailing considerations are insufficient to justify revocation.

The Tribunal affirmed the decision to mandatorily cancel Thornton's visa, finding that there was no other reason to revoke the cancellation.