Passells and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration and Border Protection to affirm the mandatory cancellation of Mr Passells's visa. Mr Passells had a substantial criminal record, having been sentenced to a four-year term of imprisonment for possessing a prohibited drug with intent to sell or supply, and was serving that sentence at the time of the cancellation. Consequently, he did not pass the character test under section 501(6) of the *Migration Act 1958* (Cth) and his visa was mandatorily cancelled under section 501(3A) of the Act.

The court was required to determine two key issues: first, whether Mr Passells passed the character test as defined in section 501(6) of the *Migration Act*; and second, if he did not pass the character test, whether the discretion under section 501CA(4) of the Act should be exercised to revoke the mandatory cancellation of his visa. The court noted that it was common ground that Mr Passells possessed a substantial criminal record and was liable for mandatory cancellation. Therefore, the central question for determination was whether there was "another reason" why the mandatory cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii).

In considering the revocation, the court examined evidence of Mr Passells's engagement in counselling sessions while in immigration detention. This evidence indicated that Mr Passells was experiencing significant stress and anxiety regarding his potential deportation to New Zealand, despite having resided in Australia for most of his life and having his entire family and support network there. The counselling notes suggested that Mr Passells was actively seeking to develop coping strategies and find acceptance of his situation, demonstrating resilience and resourcefulness. The court considered this new evidence in the context of the binding "Direction No. 65" issued by the Minister, which guides decision-makers on visa refusal and cancellation under section 501 and revocation under section 501CA.

Ultimately, the court affirmed the decision of the delegate of the Minister not to revoke the cancellation of Mr Passells's visa. While acknowledging the applicant's efforts in counselling and his expressed desire to cope with his circumstances, the court found that these factors did not constitute a sufficient reason to revoke the mandatory cancellation. The decision underscored that the threshold for revoking a mandatory cancellation, even with new evidence, requires a compelling reason that outweighs the public interest considerations inherent in the character provisions of the *Migration Act*.