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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a doctor, had been convicted of sexual penetration without consent and sentenced to three years imprisonment. His visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test due to having a substantial criminal record and serving a full-time sentence of imprisonment. The Applicant sought revocation of this cancellation decision, which was refused by the delegate, leading to the present review by the Tribunal.

The Tribunal was required to determine two issues: first, whether the Applicant passed the character test as defined by section 501(6) of the Migration Act; and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked under section 501CA(4) of the Migration Act. The Tribunal considered evidence including the Applicant's oral evidence, the testimony of a clinical psychologist, and various documentary exhibits. Crucially, the Tribunal was unable to consider additional evidence filed by the Applicant after the hearing due to the operation of the two-day rule under section 500(6J) of the Migration Act, which requires documents to be provided to the Minister at least two business days before the hearing.

The Tribunal found that the Applicant did not pass the character test due to his conviction for a serious sexual offence and the resulting substantial criminal record. In assessing whether there was another reason to revoke the cancellation, the Tribunal considered factors such as the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the Applicant's honesty, remorse, and acceptance of responsibility, community expectations, impediments to removal, and ties to Australia. The Tribunal noted significant doubts as to the Applicant's purported remorse and acceptance of responsibility, and ultimately concluded that there was no other reason to revoke the cancellation decision. The Tribunal affirmed the delegate's decision not to revoke the cancellation.