1936031 (Refugee)

The applicant, a refugee, sought judicial review of a decision to cancel their protection visa. The cancellation was based on the applicant having been charged with certain offences, which the Minister considered posed a risk to the health, safety, or good order of the Australian community. The Administrative Appeals Tribunal (AAT) had affirmed the delegate's decision to cancel the visa. The matter came before the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the Minister, or their delegate, had the power to cancel the applicant's protection visa under the relevant provisions of the *Migration Act 1958* (Cth) when the applicant had subsequently received a "not guilty" verdict for one charge and another charge had been dismissed. Specifically, the Court had to determine if the grounds for cancellation, as articulated by the Minister, were established in light of these outcomes.

Her Honour Judge Younes found that the power to cancel the visa under section 501(3)(b) of the *Migration Act* was predicated on the Minister being satisfied that a person "does not pass the character test". The character test, in this context, required the Minister to be satisfied that the person's offending constituted a risk to the Australian community. Given that the applicant had been found not guilty of the most serious charge and the other charge was dismissed, the Court concluded that the factual basis for the Minister's satisfaction that the applicant did not pass the character test, and therefore posed a risk, was not established. The Court reasoned that the subsequent legal outcomes of the charges meant the grounds upon which the visa cancellation was purportedly based were not met.

Consequently, the Court set aside the decision under review and remitted the matter to the Administrative Appeals Tribunal for redetermination according to law.