QGMJ and Minister for Immigration and Border Protection (Migration)

This matter concerned the mandatory cancellation of QGMJ's visa by the Minister for Immigration and Border Protection. The dispute arose because QGMJ did not pass the character test due to having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The Administrative Appeals Tribunal was required to determine whether the mandatory cancellation of QGMJ's visa should be revoked.

The Tribunal was tasked with two primary legal issues: first, whether QGMJ passed the character test as defined in section 501(6) of the Migration Act 1958 (Cth); and second, if he did not pass the character test, whether the discretion under section 501CA(4) of the Act should be exercised in his favour to revoke the mandatory cancellation. This second issue required the Tribunal to consider whether there was "another reason" to revoke the decision, in accordance with Ministerial Direction No. 65.

In its reasoning, the Tribunal affirmed that QGMJ did not pass the character test due to his substantial criminal record, which triggered the mandatory cancellation provisions under section 501(3A) of the Migration Act. The Tribunal then considered the revocation of this cancellation under section 501CA(4), applying the principles outlined in Ministerial Direction No. 65. This involved weighing factors such as the protection of the Australian community, the best interests of minor children, community expectations, non-refoulement obligations, the strength of ties to Australia, and impediments to removal, including mental health conditions. Ultimately, the Tribunal found that the mandatory cancellation of QGMJ's visa should be affirmed.