Flores and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of an applicant, a citizen of the Philippines, whose visa was mandatorily cancelled under s.501(3A) of the Migration Act 1958 (Cth) due to failing the character test, specifically having a substantial criminal record. The applicant sought revocation of this cancellation. The Minister contended that the correct and preferable decision was not to revoke the cancellation.

The Tribunal was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the mandatory cancellation. This involved assessing the applicant's criminal history against the criteria set out in Ministerial Direction No. 65, which mandates consideration of the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, alongside other relevant considerations such as non-refoulement obligations and the applicant's ties to Australia.

The Tribunal found that the applicant's numerous drug offences and repeated offending, including while under court obligations, demonstrated a lack of good character and a substantial criminal record, thus failing the character test as a matter of law. While acknowledging the applicant's substantial ties to Australia, including family and children, and positive character references, the Tribunal concluded that these factors did not outweigh the compelling considerations against revocation. The Tribunal held that the protection of the Australian community and the expectations of the Australian community weighed heavily against revoking the cancellation, and it was not satisfied that there was another reason to do so.

Consequently, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.