HZCP and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by HZCP against the mandatory cancellation of his protection visa by a Ministerial delegate. HZCP, a citizen of Sri Lanka, had been granted a protection visa in 2010. However, in 2013, he was convicted of grievous bodily harm and unlawful wounding, receiving a sentence of imprisonment of two years and six months. This conviction triggered the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth) as he was serving a sentence of imprisonment of 12 months or more. The Administrative Appeals Tribunal (AAT) was asked to determine whether to revoke this cancellation.

The primary legal issues before the Tribunal were whether HZCP passed the character test as defined in section 501(6) of the *Migration Act*, and if not, whether the discretion under section 501CA(4) of the Act should be exercised to revoke the mandatory cancellation of his visa. The Tribunal was required to consider the principles outlined in Direction No 65, which mandates consideration of factors such as the protection of the Australian community from criminal or other serious conduct, community expectations, the non-refoulement obligations, the strength and duration of ties to Australia, and the impediments to removal.

The Tribunal found that HZCP did not pass the character test due to his substantial criminal record, arising from his conviction and sentence for serious violent offences. Consequently, his visa was mandatorily cancelled. In considering whether to revoke this cancellation, the Tribunal applied Direction No 65, which emphasises the government's commitment to protecting the Australian community and the privilege of remaining in Australia. The Tribunal noted that while HZCP had presented evidence regarding his family situation in Sri Lanka and his alleged persecution, these factors were outweighed by the seriousness of his criminal conduct and the need to uphold community expectations regarding the character of non-citizens. The Tribunal concluded that there was no other reason to revoke the original decision to cancel HZCP's visa.

The Tribunal affirmed the earlier decision to cancel HZCP's visa and therefore made no order revoking the cancellation.