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

The Administrative Appeals Tribunal (the Tribunal) considered the case of BMKL and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the Applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, and the subsequent refusal to revoke that cancellation. The Applicant, a citizen of Myanmar, had committed approximately 40 offences in Australia, including those against women, children, and police, and had been convicted and imprisoned for several serious offences.

The Tribunal was required to determine whether the delegate's decision to refuse to revoke the mandatory visa cancellation was correct. This involved assessing the Applicant's character, particularly in light of his criminal history and the provisions of section 501(6) of the *Migration Act 1958* (Cth), which defines the "character test" and includes having a substantial criminal record as a ground for failing that test. The Tribunal also had to consider the Applicant's claims regarding his background, family in Myanmar, and the circumstances of his offending, as well as his potential return to Myanmar.

The Tribunal's reasoning focused on the Applicant's credibility, finding significant inconsistencies and implausibility in his evidence regarding his family in Myanmar, the dates of his departure, his ability to speak English, and the nature of his offending. The Tribunal preferred the evidence of the Applicant's brother, which was found to be more consistent and forthright. The Tribunal concluded that the Applicant had engaged in blame-shifting and had not demonstrated rehabilitation, particularly concerning his alcohol abuse and its link to his offending. The Tribunal affirmed the delegate's decision to refuse to revoke the visa cancellation.