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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's visa under section 501CA(4) of the *Migration Act 1958* (Cth). The Applicant, born in Sudan in 1991, arrived in Australia in 2003. His visa was cancelled under section 501(3A) of the Act in January 2016 following convictions in July 2015 for which he received an aggregate sentence of 20 months imprisonment. Following a previous notification that did not meet statutory requirements, the Applicant was re-notified and invited to make representations, which he did. Ultimately, a delegate decided not to revoke the visa cancellation.

The primary legal issue before the Tribunal was whether there was "another reason" why the Applicant's visa cancellation should be revoked, as permitted by section 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the non-revocation of the cancellation decision, having regard to the Applicant's substantial criminal record, which meant he did not pass the character test under section 501(6)(a) of the Act. The Tribunal was required to assess various considerations, including the protection of the Australian community, the strength and nature of the Applicant's ties to Australia, the best interests of any minor children, and the expectations of the Australian community.

The Tribunal reasoned that the Applicant possessed a substantial criminal record, including convictions for offences such as affray, intentionally causing injury, and riot, with his most serious offending resulting in a 20-month aggregate sentence. The Tribunal found that the Applicant did not pass the character test and that the primary considerations weighed against revocation. While acknowledging the Applicant's ties to Australia and the best interests of his minor children, these were not considered sufficient to outweigh the risk to the Australian community posed by his criminal history. The Tribunal concluded that there was no other reason to revoke the cancellation decision.

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