Pavey and Minister for Home Affairs (Migration)

This matter concerned an application to revoke the mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return Visa. The applicant, Pavey, did not pass the character test, leading to the mandatory cancellation of his visa. The dispute before the Administrative Appeals Tribunal, presided over by Theodore Tavoularis SM, was whether there was another reason to revoke this cancellation decision, considering Ministerial Direction No. 79.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant passed the character test as defined by section 501 of the Migration Act 1958 (Cth). Secondly, if the applicant did not pass the character test, whether there was another reason why the mandatory cancellation decision should be revoked. The Tribunal noted that if the applicant succeeded on either of these grounds, the cancellation of his visa must be revoked.

In its reasoning, the Tribunal referred to Ministerial Direction No. 79, which outlines considerations for protecting the Australian community from harm. This direction emphasises that remaining in Australia is a privilege for non-citizens, who are expected to be law-abiding. The Tribunal considered the applicant's extensive criminal history, which included 17 court appearances between 2008 and 2019, resulting in convictions for 78 offences. These offences encompassed drug possession and supply, assault, weapons offences, property damage, fraud, trespass, breaches of domestic violence orders, and breaches of bail and suspended sentences. The Tribunal also noted that this was the second time the applicant's visa had been cancelled on character grounds, with a previous cancellation in 2017 being revoked after representations were made, despite a warning that further offending could lead to reconsideration. The Tribunal applied the principle that a person has a substantial criminal record if sentenced to imprisonment for 12 months or more, which is relevant to passing the character test.

The Tribunal affirmed the decision to cancel the applicant's visa.