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

The Administrative Appeals Tribunal reviewed a decision concerning the mandatory cancellation of the applicant's Class TY subclass 444 Special Category (Temporary) visa. The visa had been cancelled on the grounds that the applicant had a substantial criminal record, specifically being sentenced to a term of imprisonment of 12 months or more. However, this sentence was subsequently reduced on appeal to nine months. While the delegate acknowledged the original ground for cancellation no longer applied, they found the applicant failed the character test on other grounds and decided not to revoke the mandatory cancellation under section 501CA of the *Migration Act 1958* (Cth).

The Tribunal was required to determine two primary questions. First, whether the applicant failed the character test as defined in the Act. If the applicant did not fail the character test, the visa cancellation would be set aside. If the applicant did fail the character test, the Tribunal then had to consider the second question: whether there was "another reason" to revoke the mandatory cancellation of the visa. The Tribunal also had to consider Ministerial Direction No. 90, including the primary consideration of acts of family violence and the best interests of minor children affected by the decision.

In its reasoning, the Tribunal affirmed that when reviewing a decision not to revoke a mandatory visa cancellation under section 501CA(4), it makes a fresh decision based on the law and information before it, not merely reviewing the delegate's decision. The Tribunal applied the principles from *Gaspar v Minister for Immigration and Border Protection* (2016) 153 ALD 337, confirming that section 501CA(4) requires an assessment of factors for and against revocation, and if satisfied that revocation is warranted, the Minister (or Tribunal) is obliged to act on that view. The Tribunal also considered *BJT21 v Minister for Home Affairs (No 2)* [2022] FCA 24, which held that a subsequent reduction in a prison sentence below the threshold for mandatory cancellation does not retrospectively vitiate the original cancellation decision, but may be a factor considered under section 501CA(4)(b)(ii) for revocation. The Tribunal found that the applicant's offending, described as acts of family violence, weighed heavily against revoking the cancellation. Furthermore, considering the best interests of the applicant's minor children, the Tribunal noted the significant distress experienced by one son due to the applicant's absence and nightmares, and the other son's sadness and desire for his father's return, weighing these against the applicant's limited proposed role and the impact of his prior conduct.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the applicant's visa.