KLKN and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant's visa had been cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record. The Applicant subsequently made representations to the Minister seeking revocation of this decision, highlighting factors such as the best interests of his stepchildren, fears for his safety if returned to South Sudan, remorse for his offending, his lengthy residence in Australia, community contributions, family ties in Australia, and the hardship he would face upon return. After considering these representations, a delegate of the Minister decided not to revoke the cancellation. The Applicant then sought review of this decision in the Administrative Appeals Tribunal.

The Tribunal was required to determine two key issues. Firstly, whether the Applicant passed the character test as defined by s 501(6) of the *Migration Act*. Secondly, if the Applicant did not pass the character test, whether there was another reason to revoke the mandatory visa cancellation decision, having regard to the primary and other considerations set out in Ministerial Direction no. 65. These considerations included international non-refoulement obligations, protection of the Australian community, the best interests of minor children, community expectations, the nature and seriousness of the offending, the risk of future criminal conduct, the strength and duration of ties to Australia, and impediments to return to the applicant's home country.

The Tribunal's reasoning focused on the delegate's assessment of the Applicant's representations against the criteria in Ministerial Direction no. 65. The delegate had considered the Applicant's submissions regarding his stepchildren, fears of returning to South Sudan, remorse, rehabilitation efforts, ties to Australia, and community contributions. However, the delegate was not satisfied that these factors outweighed the need to protect the Australian community or that there was another compelling reason to revoke the cancellation. The delegate's statement of reasons indicated that the Applicant did not pass the character test and that no other reason existed for revocation. The Tribunal was therefore tasked with reviewing this decision, considering all the relevant factors and legal principles.