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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of Myanmar, had arrived in Australia at the age of 15 and had resided there since. His visa was mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) following his conviction for drug trafficking offences, for which he received sentences totalling over 12 months imprisonment. The Tribunal was asked to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, and if he did not, whether there were other compelling reasons to revoke the mandatory cancellation of his visa. The character test, as defined in s 501(6) of the *Migration Act*, includes having a substantial criminal record, which is established by a sentence of imprisonment of 12 months or more. The Tribunal was required to consider the factors outlined in Direction No 79, including the protection of the Australian community, the nature and seriousness of the offending, the risk to the community, community expectations, non-refoulement obligations, and the strength and duration of the Applicant's ties to Australia.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. However, in considering whether there was another reason to revoke the cancellation, the Tribunal weighed various factors. It noted the Applicant's young age upon arrival in Australia, his long period of residence, and his family ties in Australia, including his mother and sister. The Tribunal also considered the impediments the Applicant might face if removed to Myanmar, the impact of the COVID-19 pandemic on potential removal, and the Applicant's stated remorse and acceptance of his offending. Ultimately, the Tribunal was satisfied that these considerations constituted another reason why the cancellation decision should be revoked.

Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted it with a decision that the cancellation of the Applicant's visa be revoked.