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

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a Sudanese national who arrived in Australia at age 20, did not pass the character test due to having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision under section 501CA(4) of the *Migration Act 1958* (Cth).

The Tribunal considered various factors under Direction No 99, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, the risk to the Australian community, family violence, the strength, nature, and duration of the Applicant's ties to Australia, the best interests of his minor daughter and two minor sons, community expectations, the legal consequences of the decision, impediments to removal to Sudan, and the impact on victims. The Applicant's ties to Australia were assessed, including his relationship with his partner, an Indigenous Australian woman, and their children. The Tribunal also considered the difficult circumstances his partner would face if they were to relocate to Sudan, including her own health conditions and the potential separation from her family and Indigenous culture.

After balancing the competing considerations, the Tribunal found that the primary consideration of the protection of the Australian community weighed moderately against revoking the cancellation decision. However, the Tribunal gave considerable weight to the Applicant's ties to Australia, particularly his long residence since his formative years and his relationship with his Indigenous partner and children. The Tribunal also noted the significant impediments the Applicant would face if removed to Sudan. Ultimately, the Tribunal was satisfied that there was another reason to revoke the cancellation decision. The Reviewable Decision was set aside and substituted with a decision to revoke the cancellation.