Eluchie 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 Nigerian citizen, had arrived in Australia as a student and was found to have a substantial criminal record due to offences involving receiving monies from victims of romance scams. The primary legal issues before the Tribunal were whether the Applicant passed the character test under section 501(6) of the Migration Act, and if not, whether there was another reason to revoke the visa cancellation decision under section 501CA(4) of the Act.

The Tribunal was required to consider the factors outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, and any risk posed to the community. The Tribunal also had to assess the strength, nature, and duration of the Applicant's ties to Australia, noting the absence of family violence offences and minor children. The Applicant's marriage to an Australian citizen, AK, was a significant consideration regarding his ties to Australia. AK's statutory declaration expressed the devastating emotional impact his removal would have on her and her inability to live in Nigeria, highlighting her immediate family's presence in Australia.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record, as defined by section 501(7)(c) of the Migration Act, which includes being sentenced to a term of imprisonment of 12 months or more. While the Applicant had ties to Australia through his marriage, the Tribunal determined that these ties, in the context of his criminal conduct, did not constitute another reason to revoke the cancellation decision. The Tribunal noted the impact on victims of the Applicant's conduct and the expectations of the Australian community. Ultimately, the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa.