Mesarich and Minister for Immigration, Citizenship, Migrant Services and Multicultural 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 38-year-old man who had been living in Australia since 2012, had a substantial criminal record, including drug and weapons offences, which meant he did not pass the character test under section 501(6) of the *Migration Act 1958* (Cth). The primary dispute was whether there was another reason, within the meaning of section 501CA(4) of the *Migration Act*, why the cancellation decision should be revoked. The Administrative Appeals Tribunal (AAT) was required to determine these issues.

The Tribunal was tasked with determining two key issues: first, whether the Applicant passed the character test as defined by section 501(6) of the *Migration Act*; and second, if he did not pass the character test, whether there was another reason to be satisfied that the visa cancellation decision should be revoked. In considering the second issue, the Tribunal was bound to apply Direction No 90, which outlines the primary and other considerations relevant to such decisions. These considerations included the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk posed to the Australian community, the best interests of the Applicant's minor daughters, the expectations of the Australian community, the extent of impediments to the Applicant's removal to New Zealand, and the strength, nature, and duration of the Applicant's ties to Australia.

In its reasoning, the Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. Applying Direction No 90, the Tribunal considered various factors. It noted that the Applicant's international non-refoulement obligations did not arise. Regarding impediments to removal to New Zealand, the Tribunal found no substantial language or cultural barriers, and while the Applicant reported some stress and depression, there was no independent evidence of a formal diagnosis, and he was otherwise in good physical health. The Tribunal also considered the Applicant's ties to Australia, noting he had resided there since 2012. Crucially, the Tribunal found that the expectations of the Australian community, as outlined in paragraph 8.4 of Direction No 90, weighed strongly against revoking the cancellation decision.

Ultimately, the Tribunal was not satisfied that there was another reason to revoke the cancellation decision. The Reviewable Decision was affirmed, meaning the mandatory cancellation of the Applicant's visa was upheld.