Sarian and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the Applicant's Class BW Subclass 856 Employer Nomination Scheme (Permanent) visa. The Applicant, a citizen of France, failed to pass the character test due to a substantial criminal record involving sexual and violent offending and polysubstance drug abuse. The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation decision, applying Ministerial Direction No. 90.

The Tribunal was tasked with considering whether the Applicant's representations provided a basis for revoking the visa cancellation, specifically whether there was "another reason" to do so, as contemplated by section 501CA(4)(b)(i) of the Migration Act 1958 (Cth). This required the Tribunal to assess the evidence before it at the time of its decision, rather than solely what was before the original decision-maker. The Tribunal was guided by principles established in cases such as *Viane* and *Bettencourt*, which outline the need for a genuine and substantial consideration of any significant claims made in representations for revocation.

The Tribunal affirmed the decision under review. It found that the Applicant did not pass the character test as a matter of law due to his criminal convictions and the imposition of a sentence of 12 months or more. Consequently, section 501CA(4)(b)(i) of the Act did not provide a basis for revocation. The Tribunal then considered whether the discretion to revoke the cancellation was enlivened by the existence of "another reason," applying the principles from *Viane* and *Bettencourt*. After considering the evidence and submissions, the Tribunal concluded that there was no other reason to revoke the mandatory cancellation.