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

This matter concerned an application to the Administrative Appeals Tribunal for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancellation of the Applicant’s visa. The Applicant, a New Zealand citizen, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record and serving a term of imprisonment. The Tribunal was required to determine whether it should exercise its power under section 501CA(4)(b) of the Act to revoke this cancellation.

The primary legal issues before the Tribunal were twofold: first, whether the Applicant passed the character test as defined by section 501 of the Act; and second, if he did not pass the character test, whether there was "another reason" why the decision to cancel his visa should be revoked. The Tribunal considered the Applicant’s criminal history, which included convictions for driving offences and, significantly, the discovery of a large quantity of drugs, weapons, and a cannabis cultivation setup at his residence. The Applicant conceded that he did not pass the character test due to his substantial criminal record, which included being sentenced to terms of imprisonment totalling more than 12 months.

In considering whether there was "another reason" to revoke the cancellation, the Tribunal had regard to Ministerial Direction No. 90, which outlines various considerations including the protection of the Australian community, the nature and seriousness of offending, the risk to the community, the best interests of minor children, community expectations, impediments to removal, and ties to Australia. The Applicant presented arguments that his offending was linked to past drug addiction, from which he claimed to be abstinent since March 2021, and that he had completed a substance abuse program. He also highlighted his strong family ties in Australia, his long period of residence, his contributions to the community through coaching rugby, and his perceived good behaviour as a prisoner, evidenced by his parole grant.

The Tribunal affirmed the decision to cancel the Applicant's visa. It found that the Applicant did not pass the character test due to his substantial criminal record. While acknowledging the Applicant's submissions regarding his rehabilitation efforts and community ties, the Tribunal ultimately concluded that these factors did not constitute "another reason" sufficient to warrant the revocation of the visa cancellation, particularly in light of the seriousness of his criminal offending.