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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Spouse (Resident) visa. The applicant, who arrived in Australia in 2006, had been granted a partner visa in 2009 based on his marriage to an Australian citizen. Following his arrival, he accumulated a significant criminal record, leading to a visa cancellation in 2016 which was subsequently revoked. A further conviction in October 2020 for offences including contravention of a family violence intervention order resulted in a renewed mandatory cancellation of his visa under s 501(3A) of the *Migration Act 1958* (Cth). The delegate's decision not to revoke this cancellation was the subject of the review.

The primary legal issue before the Tribunal was whether there was "another reason" under s 501CA(4) of the Act why the mandatory cancellation of the applicant's visa should be revoked, given that he did not pass the character test due to his substantial criminal record. This required the Tribunal to consider various factors, including the protection of the Australian community from criminal conduct, the best interests of a minor child, community expectations, impediments to removal, and the applicant's links to the Australian community. The Tribunal also had to determine if the delegate's reliance on a previous conviction for the purpose of establishing a substantial criminal record was appropriate, particularly in light of prior revocations and relevant Federal Court authority.

The Tribunal reasoned that while the applicant's criminal history was extensive and included serious offences, including those involving family violence, the delegate's decision was flawed in its reliance on a conviction that had previously been part of a cancelled visa that was later revoked. Citing *XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*, the Tribunal noted that a delegate cannot simply re-make the same decision on the basis of the same facts if a previous cancellation based on those facts was revoked. A fresh serious criminal sentence is generally required to re-enliven the power to cancel. The Tribunal also considered the best interests of the applicant's young child, noting a statement from the child's mother expressing a desire for the applicant to remain in Australia to be involved in the child's life, provided he complied with court orders.

Ultimately, the Tribunal found that there was another reason why the cancellation should be revoked. The decision affirmed the applicant's visa, meaning the mandatory cancellation was revoked.