Mohammadi and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Mohammadi for the revocation of the mandatory cancellation of his visa. Mr Mohammadi arrived in Australia in 2006 on a Woman at Risk visa. His visa was mandatorily cancelled in August 2016 after he was sentenced to a custodial term of four years and eight months for offences including aggravated blackmail, false imprisonment, and aggravated intentionally causing harm, committed in February 2013. The cancellation was based on Mr Mohammadi failing to pass the character test due to having a substantial criminal record, as defined by section 501(7) of the *Migration Act 1958* (Cth).

The Administrative Appeals Tribunal (AAT) was required to determine whether there was another reason why the cancellation of Mr Mohammadi's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). In making this determination, the AAT was bound by Ministerial Direction No. 65, which requires decision-makers to give primary considerations greater weight than other considerations. The primary consideration relevant to this case was the protection of the Australian community.

The Tribunal considered the nature and seriousness of Mr Mohammadi's conduct, noting two separate incidents of violent assaults involving the aggravating factors of weapon use and commission in company. The sentencing remarks highlighted the offenders' intention, premeditation, teamwork, and choice of weapons in one incident, and the psychological and physical damage to the victim, along with the applicant's emotional instability and post-traumatic stress disorder, in another. The Tribunal found that these factors weighed heavily against the application for revocation. While the Tribunal acknowledged its power to inform itself in any manner it thinks appropriate, it also recognised the tension between this flexibility and the principles of natural justice and fairness inherent in the rules of evidence, as discussed in *Sullivan v Civil Aviation Safety Authority* [2014] FCAFC 93 and *R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott* [1933] HCA 30.

Ultimately, the Tribunal found that Mr Mohammadi did not pass the character test, and therefore the power to revoke the cancellation under section 501CA(4)(b)(i) was not available. The Tribunal concluded that there was no other reason why the original decision to cancel the visa should be revoked, and accordingly, the decision to affirm the mandatory cancellation of Mr Mohammadi's visa was affirmed.