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

This matter concerned an application for review by an applicant, a citizen of South Sudan, of a decision by a delegate of the Minister not to revoke a mandatory visa cancellation. The applicant held a Global Special Humanitarian visa (Class XB Subclass 202) and had multiple criminal convictions, including violent offending and family violence, which meant he failed the character test due to a substantial criminal record. This led to a mandatory cancellation of his visa.

The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation decision, applying Ministerial Direction No. 99. A key legal issue was whether the Tribunal could consider the "broad version" of the character test when assessing the revocation application, or if it was confined to the "narrow version" applied at the time of the original cancellation decision. The applicant contended that a reduction in sentence following an appeal should allow him to pass the character test, thereby invalidating the original cancellation.

The Tribunal, applying the principles established in *PYDZ* and *XJLR*, held that it was entitled to consider the broad version of the character test when exercising its power under s 501CA(4) of the *Migration Act 1958* (Cth). This broad version allows for consideration of multiple offences, including those served concurrently, and is consistent with the statutory scheme of merits review. The Tribunal found that even under the broad character test, the applicant failed to pass it due to his criminal record. Consequently, the Tribunal affirmed the delegate's decision not to revoke the mandatory visa cancellation.