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

This matter came before Senior Member A Poljak of the Administrative Appeals Tribunal concerning the mandatory cancellation of the applicant's Bridging A (Class WA) (Subclass 010) visa under section 501(3A) of the *Migration Act 1958* (Cth). 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. The dispute centred on whether the discretion to revoke this visa cancellation under section 501CA(4) of the Act should be exercised, following the delegate's refusal to do so.

The primary legal issue before the Tribunal was to determine if there was "another reason" why the visa cancellation should be revoked, as contemplated by subsection 501CA(4)(b)(ii) of the Act. In making this determination, the Tribunal was required to have regard to Ministerial Direction No. 99, which provides a framework for decision-makers when considering the revocation of a mandatory visa cancellation. This involved assessing various factors, including the strength, nature, and duration of the applicant's ties to Australia, and the impact of any decision on their immediate family members.

The Tribunal's reasoning focused on the application of paragraph 8.3 of Direction 99. While acknowledging the applicant's completion of tertiary qualifications and positive contributions to the Australian community through volunteer work, the Tribunal gave less weight to the length of time the applicant had resided in Australia (eight years) because he did not spend his formative years there and his offending commenced relatively soon after his arrival. The Tribunal also considered the applicant's wife and daughter, who are Australian citizens and hold indefinite Bridging visas, and whose own visa applications are pending. Despite these connections, the Tribunal found that the strength, nature, and duration of the applicant's ties to Australia were not sufficiently compelling to warrant the revocation of the visa cancellation.

Ultimately, the Tribunal set aside the delegate's decision not to revoke the cancellation and substituted a new decision. The Tribunal exercised its discretion under section 501CA(4) of the Act and decided not to revoke the mandatory cancellation of the applicant's visa.