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

This matter concerned an application by Akon Mabuoc (the applicant) for review of a decision to refuse to revoke the mandatory cancellation of his visa. The applicant's visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record and serving a sentence of imprisonment. The applicant subsequently applied for revocation of this cancellation, which was refused. The applicant then sought review of that refusal before the Tribunal.

The Tribunal was required to determine two issues: first, whether the applicant passed the character test as defined in section 501(6) of the Act; and second, if he did not pass the character test, whether there was another reason why the visa cancellation should be revoked under section 501CA(4)(b)(ii) of the Act. The Tribunal found that the applicant did not pass the character test due to his substantial criminal record, including a sentence of imprisonment for 12 months or more.

In considering whether there was another reason to revoke the cancellation, the Tribunal applied Ministerial Direction No. 90, which outlines primary considerations including the protection of the Australian community, family violence, the best interests of minor children, and community expectations. The Tribunal acknowledged the applicant's significant and serious offending history, including family violence, which weighed against revocation and indicated a risk to the Australian community. However, counterbalancing these were considerations favouring revocation, specifically the best interests of the applicant's children, international non-refoulement obligations, the applicant's ties to the Australian community, and impediments to his removal. The Tribunal was satisfied that removal would be materially adverse to the best interests of the children and would likely breach Australia's non-refoulement obligations, finding these considerations determinative.

Consequently, the Tribunal set aside the decision under review and substituted a new decision revoking the mandatory cancellation of the applicant's visa.