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

This matter concerned an appeal by Mr Pheap Say against the mandatory cancellation of his Class BF Transitional (Permanent) visa. The cancellation was based on Mr Say failing the character test due to having a substantial criminal record, including convictions for drug trafficking, theft, burglary, and assault of an emergency service worker. The Administrative Appeals Tribunal was required to determine whether there was "another reason" to revoke the mandatory cancellation.

The primary legal issues before the Tribunal were whether Mr Say failed the character test under section 501(3A) of the *Migration Act 1958* (Cth), and if so, whether there was another reason to revoke the mandatory cancellation of his visa, having regard to Ministerial Direction No. 79. The Tribunal was directed to consider factors including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, alongside other relevant considerations such as the strength, nature, and duration of Mr Say's ties to Australia and the extent of impediments to his removal.

The Tribunal found that Mr Say did indeed have a substantial criminal record, satisfying the criteria for failing the character test under section 501(7)(c) and (d) of the Act. In considering whether to revoke the cancellation, the Tribunal weighed the primary considerations under Direction No. 79. It found that Mr Say's conduct, including the assault of an emergency service worker and minimising a conviction for assaulting his sister, weighed against revocation, as did the seriousness of crimes against government officials. While the Tribunal acknowledged Mr Say's long residence in Australia since childhood and the potential impediments to his removal, it concluded that these factors, along with the best interests of his four minor children, were not sufficient to outweigh the protection of the Australian community.

Consequently, the Tribunal affirmed the decision to cancel Mr Say's visa and did not revoke the mandatory cancellation.