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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 35-year-old man from the Philippines who arrived in Australia at age 11, had a substantial criminal record dating back to 2007, including multiple driving offences, breaches of lawful orders, aggravated burglaries, and drug possession with intent to sell or supply. His most recent offending precipitated the visa cancellation. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision.

The core legal issues before the Tribunal were twofold. Firstly, it had to ascertain whether the applicant met the definition of a person who does not pass the character test under section 501(6) of the *Migration Act 1958* (Cth), particularly in light of his "substantial criminal record" as defined by section 501(7)(c). Secondly, if the applicant failed the character test, the Tribunal was required to consider whether there was "another reason" under section 501CA(4) of the Act to revoke the visa cancellation decision, taking into account the considerations outlined in Direction No 99.

The Tribunal's reasoning focused on the balancing exercise required by Direction No 99, which mandates consideration of factors such as the protection of the Australian community, the nature and seriousness of the applicant's offending, the risk of future offending, the strength and duration of ties to Australia, the best interests of any children, community expectations, and impediments to removal. The Tribunal noted that while the applicant had significant ties to Australia and children in Australia, his extensive and serious criminal history, including aggravated burglaries, weighed heavily against revocation. The Tribunal adopted the principle that an unacceptable risk requires consideration of both the likelihood of offending and the seriousness of the consequences if it eventuates. Ultimately, the Tribunal found that the protection of the Australian community and community expectations outweighed the factors favouring revocation.

The Tribunal set aside the delegate's decision and substituted a new decision revoking the cancellation of the applicant's visa.