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

This matter concerned an application to the Administrative Appeals Tribunal (Tribunal) by Mr Mukhtar for a review of the decision not to revoke the mandatory cancellation of his Child (Class AH) subclass 101 visa. Mr Mukhtar, a citizen of Fiji who had resided in Australia since 2001, had his visa mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) following his conviction in December 2022 for multiple criminal offences, for which he received an aggregate sentence of 30 months imprisonment. A delegate of the Minister subsequently refused to revoke this cancellation decision.

The Tribunal was required to determine two key issues: first, whether Mr Mukhtar passed the character test as defined in s 501(6) of the Act, and second, if he did not pass the character test, whether there was "another reason" why the original cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. In considering these issues, the Tribunal was bound to have regard to Ministerial Direction 110, which outlines primary and other considerations relevant to such decisions, including the protection of the Australian community, the strength of ties to Australia, and community expectations.

In its reasoning, the Tribunal noted that Mr Mukhtar had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more, thus failing the character test under s 501(6) of the Act. The Tribunal then considered whether there was "another reason" for revocation, taking into account Mr Mukhtar's submissions regarding his personal circumstances, including the loss of a child, his mental health struggles, and his remorse. However, the Tribunal found that these circumstances did not outweigh the primary consideration of protecting the Australian community from criminal conduct, particularly given the nature of his offences. The Tribunal also noted that Mr Mukhtar failed to provide any further evidence or written submissions despite being given ample opportunity to do so.

Ultimately, the Tribunal decided to affirm the decision under review, meaning that Mr Mukhtar's application was unsuccessful and his visa remained cancelled.