WVJB 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 Special Category (Temporary) visa. The applicant, a New Zealand citizen who had resided in Australia since 1979, had a substantial criminal record, including a conviction for murder in 2006 for which he was sentenced to life imprisonment with a non-parole period of 16 years. His visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test. The applicant sought revocation of this cancellation under section 501CA(4) of the Act.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, as contemplated by section 501CA(4)(b) of the Act. This required the Tribunal to consider the factors outlined in Direction No. 99, which included the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and the best interests of any minor children. The Tribunal was satisfied that the applicant had a substantial criminal record and therefore did not pass the character test, meaning the only avenue for revocation was the existence of another compelling reason.

In its reasoning, the Tribunal acknowledged the extreme seriousness of the applicant's conduct, particularly the premeditated and unprovoked nature of the murder, as detailed by the sentencing judge. It accepted the submission that the essential facts found by the criminal court regarding the offence must be accepted. The Tribunal also considered the applicant's personal circumstances, including his traumatic childhood, history of substance abuse, mental health issues, and efforts at rehabilitation. It weighed these against the need to protect the Australian community from serious criminal conduct. The Tribunal found that while the applicant had some ties to Australia, including family members, and had expressed remorse and engaged in rehabilitation programs, these factors were not sufficiently compelling to outweigh the gravity of his offending and the risk he posed.

Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The Tribunal concluded that there was no other reason that justified the revocation of the visa cancellation, given the severity of the applicant's criminal history and the paramount consideration of protecting the Australian community.