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

This matter concerned an appeal by MPML, a Malaysian citizen, against the decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to revoke the mandatory cancellation of her visa. MPML had arrived in Australia in March 2018 and was subsequently convicted of attempting to possess prohibited drugs with intent to sell or supply, leading to a sentence of five years and six months imprisonment. Consequently, her visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to her substantial criminal record. MPML sought revocation of this cancellation under section 501CA of the Act.

The primary legal issues before the Tribunal were whether MPML failed to pass the character test, and if so, whether there was another reason why the mandatory visa cancellation should be revoked. The Tribunal was required to consider the provisions of section 501(3A), 501(6), 501(7), and 501CA of the *Migration Act 1958* (Cth), as well as Ministerial Direction No. 99, which outlines the considerations for revoking a visa cancellation. This involved assessing the nature and seriousness of MPML's conduct, the risk to the Australian community, her ties to Australia, and the expectations of the Australian community.

The Tribunal found that MPML did indeed fail the character test due to her substantial criminal record, meaning that revocation under section 501CA(4)(b)(i) was not available. However, the Tribunal then considered whether there was "another reason" under section 501CA(4)(b)(ii) to revoke the cancellation. Applying the principles from *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* and Ministerial Direction No. 99, the Tribunal conducted a holistic assessment of various considerations. While the protection of the Australian community and community expectations weighed slightly in favour of affirming the cancellation, MPML's ties to Australia carried some weight in favour of setting aside the decision. The Tribunal concluded that the evidence and considerations were finely balanced, and after a comprehensive and integrated review, it was persuaded that there was another reason to revoke the cancellation.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision revoking the original mandatory visa cancellation.