Montsho and Minister for Immigration, Citizenship 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 Mr Montsho's visa. Mr Montsho had failed to pass the character test due to a substantial criminal record, specifically a 12-month term of imprisonment in a custodial institution. The delegate's decision was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation decision, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). Mr Montsho contended that his serious conduct was out of character, influenced by alcohol abuse, and that his risk of re-offending was very low, particularly given his abstinence from alcohol and participation in rehabilitative activities during his incarceration.

The Tribunal considered Ministerial Direction No. 99, which outlines primary and other relevant considerations for such decisions, including the protection of the Australian community, the seriousness of the conduct, the risk of harm, the strength of ties to Australia, the best interests of any minor child, community expectations, and the legal consequences of removal. The Tribunal found that while Mr Montsho had presented arguments regarding his rehabilitation and commitment to abstinence, these were insufficient to satisfy the threshold for revocation. The Tribunal concluded that the presented reasons did not establish that the original decision to cancel Mr Montsho's visa should be revoked, and therefore, the power to revoke was not enlivened.