Garland 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 50-year-old man who had resided in Australia for 33 years, did not pass the character test due to a substantial criminal record, including offences of aggravated burglary with intent and assault occasioning bodily harm. The review was heard by M Evans-Bonner SM in the Perth Registry of the Tribunal.

The Tribunal was required to determine two 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. In considering the revocation, the Tribunal was bound to apply Direction No 90, which outlines primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, and the expectations of the Australian community.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. In assessing whether there was another reason to revoke the cancellation decision, the Tribunal considered the factors outlined in Direction No 90. It gave no weight to the Applicant's unsubstantiated hearsay evidence regarding potential risks in New Zealand, finding it lacked a serious and substantive basis. The Tribunal noted the serious and violent nature of the Applicant's offences, particularly the assault occasioning bodily harm against a vulnerable victim, and concluded that the expectations of the Australian community weighed strongly against revocation. While the Applicant had significant ties to Australia, the Tribunal was not satisfied that these, or any other considerations, constituted another reason to revoke the cancellation decision.

Consequently, the Tribunal affirmed the delegate's decision not to revoke the cancellation of the Applicant's visa.