Johnstone and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal (AAT) considered an application by Mr. Grant Johnstone for a review of the Minister for Immigration and Border Protection's decision not to revoke the mandatory cancellation of his Class TY Subclass 444 temporary visa. Mr. Johnstone's visa was mandatorily cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. The delegate's decision was that there was no other reason why the cancellation should be revoked.

The Tribunal was required to determine whether Mr. Johnstone passed the character test and, if not, whether there was another reason to revoke the original decision to cancel his visa, taking into account the considerations outlined in Direction No. 65. This Direction provides guidance on the application of the character test and the exercise of discretion in visa refusal, cancellation, and revocation matters, with a primary objective of protecting the Australian community from harm.

The Tribunal applied subsection 501CA(4) of the *Migration Act*, which allows for the revocation of a mandatory visa cancellation if the person passes the character test or if there is another reason for revocation. The Tribunal found that Mr. Johnstone did not pass the character test due to his substantial criminal record, including convictions for aggravated assault, aggravated burglary, and breaches of community orders, which resulted in a total sentence of 34 months imprisonment. In considering whether there was another reason to revoke the cancellation, the Tribunal referred to Direction No. 65, which mandates consideration of factors such as the protection of the Australian community, the nature and seriousness of the conduct, the risk of further offending, the best interests of minor children, community expectations, and the strength and duration of ties to Australia. After reviewing the evidence, the Tribunal concluded that it was not satisfied that there was another reason to revoke the visa cancellation.

Consequently, the Tribunal affirmed the delegate's decision that Mr. Johnstone's visa remains cancelled.