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

This matter concerned an application to review the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa under section 501(2) of the *Migration Act 1958* (Cth). The Applicant did not pass the character test due to having a substantial criminal record. The decision under review was made by the Minister for Immigration, Citizenship and Multicultural Affairs, and the Applicant sought to have this decision set aside.

The primary legal issue before the Tribunal was whether the discretion to cancel the Applicant's visa under section 501(2) of the *Migration Act 1958* (Cth) should be exercised, having regard to Ministerial Direction No. 99. This involved assessing the nature and seriousness of the Applicant's criminal offending and other conduct, as well as considering the impact of the decision on the Applicant and his family.

The Tribunal considered evidence, including a report from a psychologist, which detailed the Applicant's personal circumstances, his relationships, his work history, and the history of his offending. The Tribunal noted that the Applicant's offending, particularly his index offences in November 2015 and a subsequent common assault conviction in November 2021, were considered very serious under paragraph 8.1.1(1)(a) of Ministerial Direction No. 99, as they involved violence against a woman in a domestic violence context. Despite the seriousness of the offending, the Tribunal ultimately decided not to exercise the discretion to cancel the visa.

The Tribunal set aside the decision under review dated 10 February 2022 and substituted it with a decision that the Tribunal does not exercise the power conferred by s 501(2) of the *Migration Act 1958* (Cth) to cancel the Applicant's visa.