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

This matter concerned a review of the Minister's delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 43-year-old man who arrived in Australia at the age of five, had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test due to a substantial criminal record, specifically a sentence of three years imprisonment for "robbery in company". The applicant sought revocation of this cancellation decision.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the visa cancellation decision, having regard to the primary and other considerations outlined in Direction No. 90. The applicant did not dispute that he failed the character test. The Tribunal was required to weigh the protection of the Australian community against factors favouring the applicant, including the best interests of minor children, impediments to his return to Chile, and his ties to Australia.

The Tribunal considered the nature and seriousness of the applicant's offending, which included drug offences, traffic offences, breaches of court orders, dishonest offences, and violent offending, noting he had been imprisoned on nine occasions. It also considered the risk to the Australian community should he re-offend. In assessing the applicant's circumstances, the Tribunal took into account evidence from the applicant and his siblings, as well as letters of support. The Tribunal ultimately found that the protection of the Australian community and the expectations of the Australian community weighed heavily against revocation and outweighed the considerations favouring the applicant.

The Tribunal affirmed the delegate's decision, meaning the mandatory cancellation of the applicant's visa was not revoked.