SCJD and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, who arrived in Australia as a refugee at the age of 13, had a prolonged history of offending, including drug and firearm-related offences, which led to the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record. The applicant sought revocation of this cancellation under section 501CA of the Act.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was another reason why the mandatory cancellation of his visa should be revoked. In determining these issues, the Tribunal was required to consider the primary considerations outlined in Paragraph 13(2) of Ministerial Direction No. 65, namely the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that the applicant did not pass the character test, as he had been sentenced to terms of imprisonment of 12 months or more on multiple occasions, satisfying the definition of a substantial criminal record under section 501(7)(c) of the Act. In assessing whether to revoke the visa cancellation, the Tribunal considered the nature and seriousness of the applicant's conduct, noting his repeated offending and the fact that he had been warned about the consequences for his migration status. While acknowledging the applicant's difficult refugee journey and evidence of PTSD, the Tribunal found that these factors did not outweigh the risk of harm to the Australian community should he re-offend. The Tribunal concluded that the Australian community would expect the visa not to be revoked given the applicant's criminal history and the unacceptable risk of reoffending.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.