DMDD 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 safe haven enterprise (class XE) visa. The applicant, a citizen of Iran who arrived in Australia in 2012, had been found to not pass the character test due to a substantial criminal record, which included driving offences, drug offences, weapons possession, assault of a public officer, and possessing stolen property. The applicant also claimed to be a person to whom Australia owed protection obligations due to his bisexuality.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the character test as defined by section 501(6) of the *Migration Act 1958* (Cth); and second, if he did not pass the character test, whether there was another reason why the cancellation decision should be revoked under section 501CA(4) of the Act. In considering the second issue, the Tribunal was directed to have regard to Direction No 90, which outlines primary and other considerations including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the Australian community, the best interests of minor children, the expectations of the Australian community, international non-refoulement obligations, the extent of impediments to removal, and the strength, nature, and duration of ties to Australia.

The Tribunal found the applicant to be a credible witness and that he did not minimise his offending behaviour. It also found the evidence of his friends to be credible and their offers of community support to be genuine, though they were not aware of the full extent of his offending. The Tribunal noted that the applicant had previously been found to be a refugee due to his bisexuality, and that Australia owed him protection obligations. Despite the applicant's criminal conduct, the Tribunal considered the various factors under Direction No 90, including the applicant's limited ties to Australia, the seriousness of his offending, and the risk he posed to the community. The Tribunal ultimately set aside the delegate's decision and substituted it with a decision to revoke the cancellation of the visa.