Saleh v Minister for Immigration and Border Protection

This matter concerned an application by Mr. Saleh for the revocation of the mandatory cancellation of his visa. The dispute arose because Mr. Saleh did not pass the character test due to having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The case was heard by Deputy President Christopher Kendall of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: first, whether Mr. Saleh 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 visa cancellation. This second issue involved considering whether there was "another reason" why the cancellation decision should be revoked, in accordance with Direction No. 65.

The Tribunal found that Mr. Saleh did not pass the character test, as it was common ground that he had a substantial criminal record due to a sentence of imprisonment exceeding 12 months. Consequently, his visa was subject to mandatory cancellation under section 501(3A) of the *Migration Act*. In considering whether to revoke this cancellation under section 501CA(4), the Tribunal was bound by Direction No. 65. This Direction outlines principles for assessing character and revocation decisions, including Australia's sovereign right to determine who remains in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that serious offenders will forfeit the privilege of remaining in Australia. The Tribunal noted that while a longer period of contribution to the Australian community might afford a higher level of tolerance for certain conduct, the primary consideration remained the protection of the Australian community from harm. The Tribunal affirmed the decision to cancel Mr. Saleh's visa.