Meyrick and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr Meyrick and the Minister for Home Affairs concerning the non-revocation of a mandatory visa cancellation. Mr Meyrick's Class BF transitional (permanent) visa had been mandatorily cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) because he did not pass the character test, having served a term of imprisonment. The central dispute was whether the discretion under subsection 501CA(4) of the Act to revoke this mandatory cancellation should have been exercised.

The Tribunal was required to determine two key issues. Firstly, whether Mr Meyrick passed the character test as defined by the Act. Secondly, if he did not pass the character test, whether there was another reason why the mandatory visa cancellation should be revoked, having regard to the primary and other considerations outlined in Direction No. 65. These considerations included the protection of the Australian community, the nature and seriousness of the conduct, the risk of further offending, the best interests of minor children, community expectations, and the strength and duration of ties to Australia.

The Tribunal reasoned that under subsection 501CA(4)(b)(ii) of the Act, the Minister (and by extension, the Tribunal) must assess the factors for and against revoking the cancellation. The Tribunal noted that the word "may" in this subsection, as interpreted by the Federal Court, means "must" if the Minister is satisfied that there is another reason for revocation, implying a balancing exercise of relevant factors. In this instance, the Tribunal found that Mr Meyrick did not pass the character test due to having a substantial criminal record. After reviewing the evidence and applying the considerations in Direction No. 65, the Tribunal concluded that the discretion to revoke the visa cancellation should not be exercised.

Consequently, the Tribunal affirmed the delegate's decision not to revoke the mandatory visa cancellation.