Miller and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The applicant, who had resided in Australia since 2000, had a substantial criminal record, including convictions for drug trafficking and numerous property and dishonesty offences, for which he had received custodial sentences totalling more than 12 months.

The primary legal issue before the Tribunal was whether the delegate's decision to affirm the visa cancellation was correct and preferable. This required the Tribunal to consider the applicant's failure to pass the character test, as defined by section 501(6)(a) of the *Migration Act 1958* (Cth) due to his substantial criminal record, and to apply Ministerial Direction No 65, which governs decisions regarding visa refusal and cancellation under section 501 and the revocation of mandatory cancellations under section 501CA.

The Tribunal's reasoning focused on the primary considerations outlined in Ministerial Direction No 65, particularly the protection of the Australian community from criminal or other serious conduct. The Tribunal noted the applicant's extensive and serious offending history, including drug trafficking and a significant number of property and dishonesty offences committed while on bail. It found that the applicant's conduct did not meet the expectation that non-citizens residing in Australia should be law-abiding. The Tribunal concluded that the protection of the Australian community from such conduct was paramount and that there were no other reasons to revoke the original decision.

Accordingly, the Tribunal affirmed the delegate's decision not to revoke the cancellation of the applicant's visa.