MBQX and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by MBQX for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse to revoke the mandatory cancellation of his visa. MBQX's visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record and serving a term of imprisonment. The delegate had determined that there were no "other reasons" to revoke the cancellation.

The Tribunal was required to determine two legal issues: first, whether MBQX passed the character test as defined in the *Migration Act*; and second, if he did not pass the character test, whether the discretion under section 501CA(4) of the *Migration Act* should be exercised in his favour to revoke the mandatory cancellation.

The Tribunal found that MBQX did not pass the character test, as he had a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more. Consequently, the Tribunal considered whether there was another reason to revoke the mandatory cancellation, applying Ministerial Direction No. 65. The Tribunal noted that while Australia may afford a higher tolerance for criminal conduct in relation to a non-citizen who has lived in the Australian community from a very young age, the primary consideration was the protection of the Australian community from criminal or other serious conduct. The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of MBQX's visa.