Maryvan and Minister for Home Affairs (Migration)

This matter concerned an application by the Applicant to revoke the mandatory cancellation of his Subclass 101 Child (Permanent) visa. The cancellation was based on the Applicant failing to pass the character test due to a substantial criminal record, including sentences of imprisonment of 12 months or more. The Applicant sought revocation under section 501CA of the Migration Act 1958 (Cth), arguing there was another reason why the cancellation should be revoked. The decision was made by Linda Kirk SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(i) of the Migration Act. In determining this, the Tribunal was required to consider the factors outlined in Part C of Direction No. 79, particularly Primary Consideration A, which relates to the protection of the Australian community. This involved assessing the nature and seriousness of the Applicant's past conduct and the risk of future offending.

The Tribunal reasoned that the Applicant's extensive criminal history, spanning nine years from 2010 to 2018, demonstrated persistent offending. This history included numerous convictions for larceny, dishonesty offences, property damage, drug offences, and trespass. The Tribunal noted a trend of increasing frequency of offending, with the Applicant appearing before the court on four occasions between 2010 and 2015, and eleven occasions between 2017 and 2018. The cumulative effect of this repeated offending was found to be significant, and the Applicant's conduct did not meet the threshold for revocation under the relevant provisions.

Consequently, the Tribunal found that the Applicant could not rely on section 501CA(4)(b)(i) for the revocation of the mandatory cancellation decision. The decision affirmed the mandatory cancellation of the Applicant's visa.