Ali and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by the Applicant, an Indian citizen, seeking review of the Minister for Home Affairs' decision not to revoke the mandatory cancellation of his Class BS Subclass 201 Partner (Residence) visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 because the Applicant did not pass the character test. The Applicant's criminal history included a failure to answer bail in 2013 and, more significantly, convictions in 2017 for 11 counts of dealing with identity information to commit an indictable offence, for which he received an aggregate term of imprisonment of 7 years with a non-parole period of 3 years and 6 months.

The central legal issue before the Tribunal was whether the discretion conferred by section 501CA(4) of the Migration Act 1958 to revoke the mandatory visa cancellation should be exercised. This involved determining if there was "another reason" why the original cancellation decision should be revoked, as contemplated by the Act, and considering the relevant factors outlined in Direction No 79. The Tribunal noted that the weight of authority favoured the view that the balancing of factors favouring a refusal to revoke the cancellation is part of the single exercise of determining whether there is another reason for revocation, rather than a separate residual discretion.

In reaching its decision, the Tribunal applied the principles set out in Direction No 79, particularly concerning the protection of the Australian community. It found that the Applicant's offending was serious, involving an organised enterprise to commit fraud using fake identification for financial gain. The Tribunal noted the gravity of the offences, as evidenced by the sentencing judge's remarks and the agreed facts, which indicated the Applicant's knowledge of the roles of co-offenders and the fraudulent nature of the scheme. While the Applicant expressed a desire to re-define his life and re-engage with his family, the Tribunal found that the seriousness of his criminal conduct and the risk to the community outweighed these considerations. The Tribunal also considered evidence from a friend of the Applicant, Mr. Anas Hashmi, regarding a potential appeal, but found this did not provide a sufficient basis to exercise the discretion.

Consequently, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation of the Applicant's visa. The decision under review, which affirmed the non-revocation of the visa cancellation, was therefore affirmed.