Li and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application by Ms Li, a citizen of the People's Republic of China, for the revocation of a mandatory cancellation of her Bridging (Class WA) (subclass 010) visa. The cancellation was triggered by a conviction in the District Court of Queensland for an offence that resulted in a sentence of 15 months imprisonment, leading Ms Li to fail the character test under sections 501(6)(a) and (7)(c) of the *Migration Act 1958* (Cth). The decision was made by Dr Stewart Fenwick, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of Ms Li's visa should be revoked, having regard to Ministerial Direction No. 79. This required the Tribunal to consider several primary considerations, including the protection of the Australian community, the best interests of any minor children affected by the decision, and the expectations of the Australian community. The Tribunal was also required to assess the risk of Ms Li reoffending and her contribution to the Australian community.

In its reasoning, the Tribunal found that Ms Li's conviction meant she did not pass the character test. Regarding the protection of the Australian community, the Tribunal noted that while Ms Li's offending was of a relatively brief and confined nature, described as "white collar" crime, it did not diminish its seriousness, particularly given the custodial sentence imposed. The Tribunal considered the forward-looking risk of reoffending, taking into account submissions regarding Ms Li's limited culpability and an ongoing appeal process. On balance, this consideration weighed slightly against revocation. The Tribunal found no minor children were affected, resulting in a neutral weighting for that consideration. In relation to the expectations of the Australian community, the Tribunal accepted that a prior breach of Australian law was sufficient for an adverse finding, even in the absence of an unacceptable risk of reoffending. Despite acknowledging submissions about Ms Li's limited culpability and a perceived low risk of reoffending, the Tribunal found that her brief time in Australia, the timing of her offending shortly after arrival, and her breach of Australian law meant this consideration also weighed slightly against revocation.

On balance, the Tribunal found that the primary considerations weighed against revoking the mandatory cancellation of Ms Li's visa. Consequently, the decision to affirm the mandatory cancellation was made.