Di Stefano and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant had been notified in 2000 and 2011 that he was liable for visa cancellation due to criminal convictions, with warnings that further offending would weigh heavily against him. In 2017, his visa was cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record, including convictions for "threat to kill" and "common assault," and while serving a custodial sentence. The applicant sought revocation of this cancellation.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by s 501(6) of the *Migration Act*; and second, if he did not pass the character test, whether there was another reason to revoke the mandatory cancellation decision, having regard to the considerations outlined in Direction No. 79. This direction mandates consideration of factors such as the protection of the Australian community, the nature and seriousness of offending, the risk to the community, community expectations, and the applicant's ties to Australia, as well as any impediments to return to his country of origin.

The Tribunal considered the applicant's extensive criminal history, spanning approximately 70 offences over 30 years, and noted previous warnings issued regarding his conduct. It also took into account the applicant's significant ties to Australia, having resided there for approximately 38 years. The Tribunal's reasoning focused on balancing the need to protect the Australian community from individuals who fail the character test against the applicant's personal circumstances and ties to Australia. The decision ultimately affirmed the delegate's decision not to revoke the visa cancellation.