Du Toit 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 48-year-old man who first arrived in Australia in 2000, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record. The primary issues before the Tribunal were whether the Applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision, considering the factors outlined in Direction No 90.

The Tribunal was required to determine if the Applicant passed the character test as defined by section 501(6) of the *Migration Act*, specifically concerning whether he possessed a substantial criminal record as defined by section 501(7). If the Applicant did not pass the character test, the Tribunal then had to consider whether there was another reason to revoke the cancellation decision under section 501CA(4) of the Act. This involved assessing various considerations, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, any risk to the community, whether his conduct constituted family violence, the best interests of his minor daughter, the expectations of the Australian community, the extent of impediments if removed to South Africa, and the strength, nature, and duration of his ties to Australia.

In its reasoning, the Tribunal considered the evidence presented, including oral testimony from the Applicant and several witnesses, as well as documentary evidence. The Tribunal found that the expectations of the Australian community weighed moderately against revoking the cancellation decision. It also considered the extent of impediments the Applicant might face if removed to South Africa, noting his age, history of mental health issues including depression and PTSD, and uncertainty regarding his diagnosis and need for medication. However, the Tribunal found that Australia's international non-refoulement obligations were not applicable, as the Applicant had not advanced submissions concerning this and his fears about South Africa were general in nature.

Ultimately, the Tribunal found that there was another reason to revoke the cancellation decision. Consequently, the Reviewable Decision was set aside and substituted with a decision to revoke the cancellation.