Bahrami and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs not to revoke a previous decision to cancel the Applicant's visa. The Applicant failed the character test due to a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. The central issue before the Tribunal was whether there was another reason why the original visa cancellation decision should be revoked. The Applicant, who arrived in Australia in 2009, had his visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) in March 2017, and subsequently sought revocation of this decision, which was refused by the delegate in February 2018.

The Tribunal was required to determine if it could be satisfied that another reason existed to revoke the visa cancellation decision, as per s 501CA(4)(b)(ii) of the Act. During the review process, the Applicant, who was unrepresented, attempted to introduce further material and evidence not previously before the original decision-maker. The Tribunal considered the admissibility of this material, including statements from the Applicant's former wife and treating doctor, and blood test results, deeming some potentially relevant. The Tribunal noted that the proceedings were inquisitorial, not adversarial, and expressed regret that the Respondent chose not to cross-examine the Applicant's former wife, which the Tribunal inferred was a tactical decision that potentially subverted the Tribunal's functions and led to an unfair hearing, particularly given the serious consequences for the Applicant.

The Tribunal applied the principles established in cases such as *Minister for Immigration and Citizenship v Li and Another*, which affirm the inquisitorial nature of migration review proceedings and the importance of considering all relevant evidence to ensure a fair hearing. The Tribunal found that the Respondent's conduct in not cross-examining a key witness, despite being offered the opportunity, was regrettable and potentially unfair. The Tribunal ultimately set aside the delegate's decision not to revoke the visa cancellation and substituted its own decision.