Bernard and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Bernard to the Tribunal for a review of the delegate of the Minister for Immigration and Border Protection's decision not to revoke the mandatory cancellation of his visa. Mr Bernard had sought the revocation of the cancellation under s 501CA(4) of the *Migration Act 1958* (Cth), following his failure to pass the character test due to his criminal convictions.

The Tribunal was required to determine whether the delegate's decision not to revoke the mandatory visa cancellation was the preferable decision, having regard to the directions made by the Minister under s 499 of the *Migration Act*. Specifically, the Tribunal had to consider the guidance provided in Ministerial Direction No. 65, which outlines the primary and other considerations relevant to such decisions, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community.

In its reasoning, the Tribunal noted that Mr Bernard did not dispute that he failed to meet the character test. His criminal record, which commenced shortly after his arrival in Australia, comprised multiple convictions for dishonesty offences, including obtaining property by deception. The Tribunal observed that his offending demonstrated a trend of increasing seriousness between 2010 and 2015, with prior sentences and orders failing to deter him from further, more serious criminal conduct. The Tribunal considered that the length of the sentences imposed by the courts was indicative of the seriousness of his offending, and that the protection of the Australian community from criminal conduct was a significant primary consideration.

The delegate of the Minister had decided not to revoke the mandatory cancellation of Mr Bernard's visa, being unsatisfied that he passed the character test or that there was another reason for revocation. The Tribunal's role was to review this decision, applying the principles and considerations set out in the Ministerial Direction.