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

This matter concerned an application by FGBP for the non-revocation of a mandatory cancellation of his Class XB Subclass 200 Refugee visa. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was the respondent. The Administrative Appeals Tribunal was required to determine whether FGBP passed the character test and, if not, whether there was another reason why the cancellation of his visa should be revoked.

The primary legal issue before the Tribunal was whether FGBP passed the character test as defined by section 501(6) of the Migration Act 1958 (Cth). This involved determining if FGBP had a substantial criminal record, specifically if he had been sentenced to a term of imprisonment of 12 months or more, as defined by section 501(7) of the Act. If FGBP did not pass the character test, the Tribunal then had to consider whether there was another reason to revoke the mandatory cancellation of his visa, applying Ministerial Direction No 79.

The Tribunal found that FGBP did not pass the character test, as he had been sentenced to a term of imprisonment of 12 months or more, thus satisfying the definition of a substantial criminal record. In considering whether there was another reason to revoke the cancellation, the Tribunal applied the principles outlined in Ministerial Direction No 79. These principles emphasise Australia's sovereign right to determine who may remain in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that individuals who commit serious crimes will generally forfeit the privilege of remaining in Australia. The Tribunal considered the nature and seriousness of FGBP's conduct and the risk to the Australian community.

Ultimately, the Tribunal concluded that the Minister's delegate's decision to refuse to revoke the cancellation of FGBP's visa was correct. The decision under review was affirmed.