CFVG and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by CFVG against the mandatory cancellation of his visa by the Minister for Immigration and Border Protection. The dispute arose because CFVG had a substantial criminal record, meaning he did not pass the character test as defined in section 501(6) of the *Migration Act 1958* (Cth). Consequently, his visa was mandatorily cancelled under section 501(3A) of the Act, as he was serving a full-time custodial sentence for an offence. The appeal was heard by Deputy President Christopher Kendall.

The primary legal issues before the Tribunal were whether CFVG passed the character test, and if not, whether the discretion under section 501CA(4) of the *Migration Act* should be exercised to revoke the mandatory visa cancellation. This required the Tribunal to consider if there was "another reason" why the cancellation decision should be revoked, in accordance with Ministerial Direction No. 65.

The Tribunal's reasoning centred on the application of Ministerial Direction No. 65, which mandates consideration of specific principles when deciding whether to revoke a visa cancellation. These principles include the government's commitment to protecting the Australian community, the sovereign right to determine who remains in Australia, and the expectation that non-citizens will be law-abiding. The Direction also highlights that while a substantial criminal record generally leads to visa cancellation, considerations such as the length of time a non-citizen has lived in Australia and made positive contributions, and the consequences for minor children, may be relevant in determining whether to revoke a cancellation. The Tribunal found that CFVG did not pass the character test and was liable for mandatory cancellation.

The Tribunal affirmed the decision to cancel CFVG's visa.