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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of New Zealand who arrived in Australia as a child, had a substantial criminal record including offences of assault occasioning actual bodily harm, robbery, and possession of prohibited drugs. The delegate's decision was affirmed by the Tribunal.

The Tribunal was required to determine two issues: first, whether the Applicant passed the character test as defined by section 501(6) of the Migration Act; and second, if he did not pass the character test, whether there was another reason to revoke the cancellation decision under section 501CA(4) of the Migration Act. The Tribunal considered the considerations outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk to the community, the strength and duration of his ties to Australia, the best interests of any minor children, community expectations, and the legal consequences of removal.

In its reasoning, the Tribunal noted that the Applicant did not pass the character test due to his substantial criminal record. The Tribunal then considered whether there was another reason to revoke the cancellation decision, applying Direction No 99. While acknowledging the Applicant's ties to Australia, including his fiancée and plans for a business and family, the Tribunal found that these did not outweigh the seriousness of his criminal conduct and the risk he posed to the Australian community. The Tribunal concluded that the Applicant did not satisfy the character test and that there was no other reason to revoke the cancellation decision.