Midiana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Ms Midiana, a citizen of Papua New Guinea, for review of a delegate's decision not to revoke the mandatory cancellation of her Class BB Subclass 155 Five Year Resident Return visa. The visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because Ms Midiana failed to pass the character test due to having a "substantial criminal record," stemming from convictions for fraud and stealing, for which she received a five-year suspended sentence after serving 20 months imprisonment. The Administrative Appeals Tribunal (the Tribunal) considered the matter.

The primary legal issues before the Tribunal were whether Ms Midiana failed to pass the character test, and if so, whether there was another reason why the visa cancellation decision should be revoked under section 501CA(4)(b)(ii) of the Act. The Tribunal was required to assess the representations made by Ms Midiana, considering factors such as her mental health, addiction issues, period of residence in Australia, lack of prior criminal history in Papua New Guinea, and her expressed remorse and plans for rehabilitation. The Tribunal also had to weigh these factors against the primary consideration of protecting the Australian community from criminal or other serious conduct.

The Tribunal found that Ms Midiana did indeed fail the character test as a matter of law, given her substantial criminal record as defined by the Act. However, in considering whether there was another reason to revoke the cancellation, the Tribunal applied the principles established in *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2021] FCAFC 172. While acknowledging Ms Midiana's submissions regarding her depression, addiction, and her desire to engage with rehabilitation services, the Tribunal ultimately determined that these factors did not constitute another reason to revoke the cancellation decision. The Tribunal concluded that the risk to the Australian community outweighed the mitigating factors presented.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of Ms Midiana's visa.