Harvey and Minister for Home Affairs (Migration)

The case of *Harvey and Minister for Home Affairs (Migration)* concerned an application for review of a decision not to revoke the mandatory cancellation of Mr Harvey's permanent visa. Mr Harvey, who had resided in Australia since infancy but had not obtained citizenship, possessed an extensive criminal history, including convictions for violent offences, burglary, and high-range drink-driving. His visa was initially cancelled under section 501(3A) of the *Migration Act 1958* (Cth) while he was serving a full-time prison sentence, as he was deemed to have a "substantial criminal record" and failed the character test.

The primary legal issue before the Tribunal was whether to revoke the visa cancellation. This required the Tribunal to consider whether Mr Harvey passed the character test, or if there was another reason to revoke the cancellation, in accordance with section 501CA(4) of the Act. In determining this, the Tribunal was bound to apply Ministerial Direction No. 65, which outlines the considerations for assessing whether a person passes the character test and whether to revoke a visa cancellation.

The Tribunal's reasoning focused on applying the principles of Ministerial Direction No. 65. It acknowledged Mr Harvey's long-standing ties to Australia but gave primary consideration to the protection of the Australian community. The Tribunal found that Mr Harvey's criminal history, which included multiple sentences of 12 months or more, constituted a "substantial criminal record" for the purposes of the Act, meaning he failed the character test. Despite considering evidence presented by Mr Harvey, including witness statements, the Tribunal concluded that the unacceptable risk of harm he posed to the Australian community outweighed other considerations, such as his ties to Australia or the best interests of any minor children.

Ultimately, the Tribunal affirmed the decision under review, meaning Mr Harvey's visa cancellation was upheld. The Tribunal found that, based on the facts and in accordance with the Ministerial Direction, the cancellation of his visa was the necessary outcome.