Tohu and Minister, Immigration and Border Protection (Migration)

This matter concerned an application by the applicant, who held a Class TY Subclass 444 Special Category (Temporary) visa, to have the delegate's decision to cancel his visa revoked under section 501CA(4) of the *Migration Act 1958*. The applicant did not pass the character test due to a substantial criminal record, and the Tribunal was required to determine if there was any other reason why the original decision to cancel his visa should be revoked.

The Tribunal was required to consider the primary considerations under the relevant Direction, specifically the protection of the Australian community, the best interests of minor children in Australia, and any other substantial grounds. The applicant’s criminal record, which included 44 offences between 1999 and 2014, with convictions for serious offences such as aggravated break and enter, supply of prohibited drugs, assault occasioning actual bodily harm, aggravated robbery, and robbery in company, was a significant factor. The Tribunal also had to assess the strength, nature, and duration of the applicant's ties to Australia and the impediments to his removal to New Zealand, where he had not lived since the age of 14.

The Tribunal found that the seriousness and violence of the applicant's crimes over a long period weighed heavily against revoking the cancellation decision, as the Australian community would have limited consideration for his behaviour. While the best interests of his seven children, five of whom were under 18, were considered, and their statements indicated the traumatic impact of his potential removal, the Tribunal noted that the children could maintain contact by telephone and that future visits might be possible. The Tribunal also considered the applicant's ties to Australia, including his relationship with his children and his mother, but found these "other considerations" carried low weight and did not outweigh the primary considerations.

On balance, the Tribunal concluded that the protection of the Australian community weighed heavily against revoking the cancellation decision. Therefore, the Tribunal affirmed the delegate's decision to cancel the applicant's visa.