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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant, a citizen of New Zealand, had his visa mandatorily cancelled due to a substantial criminal record involving violent offending against a former partner, which meant he failed to pass the character test. The applicant sought to have this cancellation revoked, but this request was declined by the respondent. The applicant then sought review of this non-revocation decision by the Administrative Appeals Tribunal.

The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the visa cancellation decision, notwithstanding the applicant's failure to pass the character test. This involved considering the provisions of the *Migration Act 1958* (Cth), specifically sections 501(3A), 501(6), 501(7), and 501CA(4), which govern mandatory visa cancellation, the character test, and the power to revoke such cancellations. The Tribunal also had to consider the procedural requirements for lodging supporting documentation, as outlined in sections 500(6H)–(J) of the Act and the Tribunal's own scheduling orders.

The Tribunal's reasoning focused on the applicant's persistent failure to comply with procedural directions and scheduling orders. Despite being legally represented, the applicant failed to lodge any supporting documents by the stipulated deadlines, even after reminders and a non-compliance hearing. The Tribunal noted that sections 500(6H)–(J) of the *Migration Act* preclude the Tribunal from considering oral information or documents submitted less than two business days prior to a hearing. Given the applicant's non-compliance and the absence of any explanation for this failure, the Tribunal found that it could not have regard to any material that might have supported a reason to revoke the cancellation. Consequently, the Tribunal affirmed the respondent's decision not to revoke the visa cancellation.