FCSV 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 56-year-old Fijian citizen who arrived in Australia at age 21, had a substantial criminal record including offences of carrying out a sexual act with another without consent, numerous drug possession offences, and breaches of community correction orders. The delegate's decision was affirmed.

The court 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; and second, if he did not pass the character test, whether there was another reason to revoke the visa cancellation decision under section 501CA(4) of the Migration Act. The court considered various factors outlined in Direction No 99, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk posed to the community, the absence of family violence offences, the strength, nature, and duration of the Applicant's ties to Australia, the lack of minor children, community expectations, the legal consequences of removal, and the impact on victims.

In its reasoning, the court found that the Applicant did not pass the character test due to his substantial criminal record. The court then considered whether there was another reason to revoke the cancellation decision, applying the principles in Direction No 99. While acknowledging the Applicant's ties to Australia, including friendships and social connections, the court noted he was single and had no immediate family members in Australia. The court also considered the Applicant's commencement of an anger management course and his engagement in telephone contact with a former partner. However, the court ultimately concluded that the Applicant had not established another reason to revoke the cancellation decision, and therefore affirmed the delegate's decision.