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

The Administrative Appeals Tribunal considered the case of an applicant, a citizen of Sri Lanka, whose visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) after he failed to pass the character test due to a substantial criminal record. The applicant sought to have this cancellation revoked under section 501CA(4) of the Act. The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation should be revoked, as the applicant did not satisfy the character test.

The central legal issue was whether the applicant had established "another reason" to revoke the mandatory visa cancellation, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act*. This required the Tribunal to assess the weight to be given to various considerations, including the expectations of the Australian community, in light of the applicant's criminal history, which included offences such as being armed in public, criminal damage, breach of bail, demanding property by oral threats, and drug and weapon possession. The Tribunal also had regard to Ministerial Direction 90, which provides the framework for considering such applications.

In its reasoning, the Tribunal noted the seriousness of the applicant's offending, particularly the offence of demanding property by oral threats, which involved pointing a firearm at the victim and his father. The Tribunal considered the sentencing judge's comments, which highlighted the gravity of the threat and the applicant's intent, evidenced by the possession of a handgun, silencer, and ammunition. The Tribunal applied the principle that sentences of imprisonment reflect the objective seriousness of offences and that such sentences are a last resort. It also considered the expectations of the Australian community, as outlined in Direction 90, which generally expects that individuals who engage in serious criminal conduct will not be permitted to remain in Australia. The Tribunal found that the applicant's criminal conduct was sufficiently serious that even strong countervailing considerations were insufficient to justify revoking the mandatory cancellation.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.