Winikerei and Minister for Immigration and Border Protection (Migration)

This matter concerned an application to review the mandatory cancellation of the applicant's visa. The applicant, a New Zealand citizen, had a substantial criminal record in both Australia and New Zealand, including convictions for stealing, common assault, aggravated burglary, and drug possession. His visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) as he had a substantial criminal record and did not pass the character test. The applicant sought revocation of this cancellation.

The Tribunal was required to determine whether to exercise the discretion to revoke the mandatory visa cancellation. In doing so, it had to consider the primary considerations outlined in Direction 65, which included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the strength, nature, and duration of the applicant's ties to Australia and the extent of impediments to his removal.

The Tribunal's reasoning focused heavily on the protection of the Australian community. It found that the applicant's criminal conduct was serious, noting the violent nature of many of his offences, including domestic violence against vulnerable partners, the sentences imposed, and the frequency and escalating seriousness of his offending. The Tribunal also considered the applicant's history of methylamphetamine use and his difficulty in addressing this issue, concluding that there remained an unacceptable risk that he would reoffend if allowed to remain in Australia. The Tribunal gave little weight to the applicant's unsubstantiated claim of a threat from an outlaw motorcycle gang in New Zealand.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. It concluded that the applicant's lengthy and serious criminal record, particularly his history of violence against women and methylamphetamine use, posed an unacceptable risk to the Australian community, weighing heavily against any revocation of the cancellation decision.