MBJY and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a 32-year-old Indian national, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record and serving a custodial sentence. The Applicant conceded that he did not meet the character test as defined in section 501(6) of the Act.

The primary legal issue before the Tribunal was whether there was another reason why the mandatory cancellation of the Applicant's visa should be revoked under section 501CA(4)(b)(ii) of the Act. In determining this, the Tribunal was required to consider the principles and considerations outlined in Direction no. 79, including the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, international non-refoulement obligations, the strength and duration of the Applicant's ties to Australia, and the extent of impediments if he were returned to India.

The Tribunal considered the nature and seriousness of the Applicant's conduct, noting the principles set out in Direction no. 79 regarding violent and sexual crimes, crimes against vulnerable members of the community, the sentence imposed, the frequency of offending, and whether the non-citizen had re-offended after being warned about the consequences for their migration status. The Tribunal also had regard to the Applicant's submissions regarding his low risk of reoffending and the Respondent's contention that the protection of the Australian community weighed heavily against revocation. The Tribunal was required to comply with an 84-day timeframe for handing down its decision.