Ghimire and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for review of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a Nepalese national who arrived in Australia at age 24, had a substantial criminal record stemming from acts of family violence, breaches of domestic violence orders, and traffic offences. The review was conducted by Member Dr C Huntly of the Administrative Appeals Tribunal.

The Tribunal was required to determine two key issues: first, whether the Applicant passed the character test as defined by section 501(6) of the *Migration Act 1958* (Cth); and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked under section 501CA(4)(b)(ii) of the Act. In considering the second issue, the Tribunal was bound to apply Direction No 99, which outlines the primary and other considerations relevant to such decisions, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength of ties to Australia, and the best interests of minor children.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record, specifically referencing his conviction for common assault (domestic violence) and the subsequent Apprehended Domestic Violence Order, as well as further conduct involving threats and intimidation. As the Applicant failed the character test, he could not rely on section 501CA(4)(b)(i) for revocation. The Tribunal then considered whether there was "another reason" to revoke the cancellation under section 501CA(4)(b)(ii), applying the principles in Direction No 99. The Tribunal noted that the Applicant's conduct, including acts of family violence, was viewed very seriously under Direction No 99.

The Tribunal affirmed the reviewable decision, meaning the mandatory cancellation of the Applicant's visa was not revoked. The decision was handed down on 20 November 2023, within the statutory timeframe.