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

The Administrative Appeals Tribunal (the Tribunal) considered the case of an applicant, a citizen of the Islamic Republic of Mauritania, whose visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) after he failed to pass the character test. The applicant sought revocation of this cancellation decision. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) had decided not to revoke the cancellation, and the applicant sought review of that decision by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by section 501 of the Act, and if not, whether there was "another reason" why the decision to cancel his visa should be revoked, as permitted by section 501CA(4)(b) of the Act. The Tribunal was required to consider Ministerial Direction 90, which provides guidance on the exercise of powers under section 501CA, including considerations such as the protection of the Australian community, the nature and seriousness of the applicant's conduct, and any countervailing factors.

The Tribunal found that the applicant did not pass the character test due to having a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. Consequently, the applicant could not rely on section 501CA(4)(b)(i) for revocation. The Tribunal then considered whether there was "another reason" under section 501CA(4)(b)(ii). Applying Direction 90, the Tribunal noted the applicant's numerous breaches of family violence restraining orders and driving offences, including a conviction for acts or omissions causing bodily harm to his former domestic partner, which resulted in a 22-month sentence of imprisonment and a lifelong violence restraining order. The Tribunal concluded that there was no other reason to revoke the visa cancellation, affirming the delegate's decision.