Peacock and Minister for Home Affairs (Migration)

The case of *Peacock and Minister for Home Affairs (Migration)* concerned an application to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant did not pass the character test due to a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The core dispute revolved around whether there was "another reason" why the mandatory cancellation of the Applicant's visa should be revoked, as contemplated by the relevant migration legislation. The matter was heard by the Tribunal.

The legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation of his visa. In determining these issues, the Tribunal was required to consider and apply Ministerial Direction No 79, which sets out the framework for assessing whether to revoke a visa cancellation decision. This involved evaluating the protection of the Australian community from criminal or other serious conduct, and considering various factors related to the nature and seriousness of the Applicant's conduct.

The Tribunal found that the Applicant did not pass the character test, as he had been sentenced to a term of imprisonment of 18 months with a non-parole period of five months for the offence of entering a dwelling and committing an indictable offence. This offence was considered very serious, involving violence against a person found asleep in the Applicant's former partner's home. Despite the seriousness of this offence, the Tribunal considered the evidence permissibly before it, including documents and witness testimony. After weighing all relevant factors under Ministerial Direction No 79, the Tribunal concluded that there was another reason why the mandatory cancellation of the Applicant's visa should be revoked.

Consequently, the Tribunal set aside the decision under review and made a substituted decision revoking the original visa cancellation.