Fenton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This case concerned an application to review the Minister's decision not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to a substantial criminal record, specifically a sentence of imprisonment for two years and three months. The central dispute was whether there was "another reason" why the mandatory cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). The matter was heard by Rebecca Bellamy M.

The Tribunal was required to determine two primary issues. First, whether the Applicant passed the character test. Second, if the Applicant did not pass the character test, whether there was another reason to revoke the mandatory cancellation of his visa. The Tribunal noted that if the Applicant succeeded on either ground, the cancellation of his visa must be revoked.

The Tribunal found that the Applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more, satisfying the definition of a "substantial criminal record" under section 501(7)(c) of the Act. Consequently, the Applicant could not rely on section 501CA(4)(b)(i) for the revocation of the cancellation. However, the Tribunal then considered whether there was another reason to revoke the cancellation under section 501CA(4)(b)(ii). Applying Ministerial Direction No. 79, the Tribunal assessed the nature and seriousness of the Applicant's conduct. While the Applicant had not been convicted of violent crimes, the Tribunal considered evidence of an act of domestic violence against a former spouse, as indicated by a protection order. Despite this, the Tribunal also had regard to the Applicant's long-term residence in Australia, his employment as a mechanic and tour guide, his voluntary work in the community, and his close relationship with his adult daughter, who expressed devastation at the prospect of his removal. Weighing these factors, the Tribunal was satisfied that there was another reason to revoke the mandatory cancellation.

The Tribunal set aside the decision under review and substituted it with a decision to exercise the discretion under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant's visa.