McCutcheon and Minister for Home Affairs (Migration)

This matter concerned an application for review by a 51-year-old citizen of the United Kingdom whose visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth). The cancellation was based on the applicant failing the character test due to having a substantial criminal record and serving a sentence of imprisonment. The applicant sought revocation of this cancellation decision.

The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the mandatory visa cancellation, having regard to all relevant considerations, including those set out in Part C of Ministerial Direction No. 79. The primary considerations under Direction 79 were the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal found that the applicant did not pass the character test due to his substantial criminal record, which included multiple convictions for rape and false imprisonment, as well as numerous driving and other offences. The Tribunal considered the principles outlined in Direction 79, noting Australia's sovereign right to determine who may remain in the country and its low tolerance for serious criminal conduct by non-citizens. While acknowledging the applicant had resided in Australia for most of his life, the Tribunal concluded that the gravity of his offending, particularly the sexual and violent offences, outweighed other considerations. Consequently, the Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.