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

This matter concerned an application for review by Mr Kipkosgei, a Kenyan citizen, of a delegate's decision not to revoke the mandatory cancellation of his Class TU Subclass 500 Student (Temporary) visa. Mr Kipkosgei's visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he failed to pass the character test due to having a substantial criminal record. The delegate's decision was reviewed by the Administrative Appeals Tribunal.

The Tribunal was required to determine two issues: first, whether Mr Kipkosgei failed to pass the character test, and second, if he did fail the character test, whether there was another reason why the mandatory visa cancellation should be revoked under section 501CA(4)(b)(ii) of the Act. The Tribunal was to consider the matter as if it were the original decision-maker, but with regard to the circumstances at the time of its own consideration.

The Tribunal found that Mr Kipkosgei did fail the character test, as he had been sentenced to a term of imprisonment of 12 months or more for his index offences, thus satisfying the definition of a 'substantial criminal record' under section 501(7)(c) of the Act. In considering whether there was another reason to revoke the cancellation, the Tribunal applied the principles established in *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2021] FCAFC 172, which require a genuine and substantial consideration of any claims made for revocation. The Tribunal ultimately affirmed the delegate's decision not to revoke the visa cancellation.