Merican and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review by an applicant, a citizen of Malaysia, against a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm the mandatory cancellation of his Class BB Subclass 155 Five Year Return visa. The visa had been mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) due to the applicant having a substantial criminal record and serving a sentence of imprisonment. The applicant sought revocation of the visa cancellation.

The Tribunal was required to determine two primary legal issues: first, whether the applicant passed the character test as defined under s 501(6) of the Act; and second, whether there was another reason why the decision to cancel the applicant's visa should be revoked. It was not disputed that the applicant had been sentenced to a term of imprisonment totalling more than 12 months, meaning he failed the character test as a matter of law. Therefore, the central issue for the Tribunal was whether any "other reason" existed to revoke the mandatory cancellation.

In considering whether there was another reason to revoke the cancellation, the Tribunal applied the principles outlined in Direction No. 90. These principles affirmed Australia's sovereign right to determine the entry and remaining of non-citizens of character concern, and the expectation that serious conduct would lead to denial or forfeiture of visa privileges. The Tribunal noted that while Australia may afford greater tolerance for criminal conduct by non-citizens who have lived in the community for a significant portion of their lives, certain conduct, such as family violence, could be so serious that even strong countervailing considerations might be insufficient to justify revocation. The Tribunal considered the primary considerations of protection of the Australian community, family violence, best interests of minor children, and community expectations, alongside other considerations such as impediments to removal and links to the Australian community. Ultimately, the Tribunal found that the applicant's criminal history and the nature of his offending were such that there was no other reason to revoke the mandatory cancellation of his visa.