Dick and Minister for Immigration, Citizenship 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 65-year-old man who arrived in Australia from the United Kingdom as a child, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to failing the character test, specifically for possession of child exploitation material. The review was heard by M Evans-Bonner SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine two key 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 Act. In considering these issues, the Tribunal was guided by Direction No 90, which outlines primary and other considerations relevant to such decisions, including the protection of the Australian community, the nature and seriousness of the offending, the risk to the community, community expectations, and the Applicant's links to Australia and impediments to removal.

The Tribunal found that the Applicant did not pass the character test. In assessing whether there was another reason to revoke the cancellation decision, the Tribunal considered various factors under Direction No 90. While acknowledging the significant health issues and impediments to removal faced by the Applicant, including his amputation and medical conditions, the Tribunal weighed these against the expectations of the Australian community, which it found weighed strongly against revocation. The Tribunal also noted that Australia's international non-refoulement obligations were not applicable in this case.

Ultimately, the Tribunal set aside the delegate's decision and substituted its own decision, revoking the cancellation of the Applicant's visa.