BCDC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This case concerned an application by the Applicant, a citizen of the Democratic Republic of Congo, for the revocation of a mandatory visa cancellation. The Applicant had been granted a Refugee (Class XB) (Subclass 200) Visa in 2009. However, his visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) on 11 December 2019, following convictions for serious offences including entering a dwelling with intent to commit a serious offence and contravention of domestic violence orders. The matter came before Deputy President Boyle of the Administrative Appeals Tribunal (AAT) pursuant to a writ of mandamus issued by the Federal Court.

The primary legal issues before the Tribunal were whether the Applicant passed the character test as defined by section 501 of the *Migration Act*, and if not, whether there was "another reason" why the decision to cancel his visa should be revoked under section 501CA(4)(b)(ii) of the Act. 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. Therefore, the Tribunal was required to consider if any other compelling circumstances warranted the revocation of the visa cancellation.

In reaching its decision, the Tribunal applied Ministerial Direction 99, which guides decision-makers in considering requests for revocation of visa cancellations. The Tribunal found that the considerations weighing against revocation, namely the protection of the Australian community from criminal conduct, the seriousness of family violence committed by the Applicant, and the expectations of the Australian community, outweighed the primary consideration of the Applicant's ties to the Australian community and other favourable considerations. The Tribunal noted the Applicant's extensive history of family violence, untreated alcohol abuse, lack of meaningful rehabilitation, and concerning attitude towards women. It also considered that any claims for protection were more appropriately dealt with through an application for a protection visa.

Consequently, the Tribunal determined that there was no "another reason" to revoke the mandatory cancellation of the Applicant's visa. The reviewable decision of the delegate was affirmed, meaning the visa cancellation remained in effect.