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

This matter concerned an application by Mr Hanger, a New Zealand citizen, to review a delegate's decision not to revoke the mandatory cancellation of his Subclass 444 Special Category (Temporary) visa. Mr Hanger's visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he failed to pass the character test due to having a substantial criminal record, stemming from a conviction for entering premises and committing an indictable offence by break, for which he received a 12-month prison sentence. He later also received a conviction in New Zealand for burglary. The Administrative Appeals Tribunal (the Tribunal) was asked to consider whether there was another reason why the visa cancellation should be revoked.

The Tribunal was required to determine two primary issues. First, whether Mr Hanger failed to pass the character test as defined by the Act. Second, if he did fail the character test, whether there was another reason, within the meaning of section 501CA(4)(b)(ii) of the Act, why the mandatory visa cancellation decision should be revoked. The Tribunal was to consider the matter afresh, standing in the shoes of the original decision-maker but with regard to the situation at the time of its own consideration.

The Tribunal found that Mr Hanger did fail the character test as a matter of law, given his substantial criminal record, which included a 12-month prison sentence for his index offending in Australia. In considering whether there was another reason to revoke the cancellation, the Tribunal applied the principles established in *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2021] FCAFC 172, which require a genuine and substantial consideration of any clearly expressed claims for revocation. The Tribunal's decision affirmed the delegate's refusal to revoke the visa cancellation.