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

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, who arrived in Australia as a refugee in 2009, had his visa cancelled on 17 November 2021, due to having a substantial criminal record and failing the character test under section 501(6)(a) of the *Migration Act 1958* (Cth). This cancellation was later reinstated following legislative changes that abrogated the Federal Court's decision in *Pearson v Minister for Home Affairs* [2022] FCAFC 203, which had previously held that an aggregate sentence did not constitute a substantial criminal record.

The primary legal issues before the Tribunal were whether there was another reason to revoke the mandatory cancellation of the Applicant's visa under subsection 501CA(4) of the *Migration Act*, considering Ministerial Direction No. 99. This involved assessing the nature and seriousness of the Applicant's offending, the strength, nature, and duration of his ties to Australia, and any international non-refoulement obligations. The Tribunal also considered the extent of impediments that had been removed, particularly in light of the Applicant's history of mental illness and his family's circumstances.

The Tribunal reasoned that while the Applicant had a substantial criminal record, the mandatory cancellation of his visa should be revoked. This conclusion was reached after weighing the prescribed considerations under Ministerial Direction No. 99. The Tribunal found that the Applicant had significant ties to Australia, including his family, his long period of residence, and his diagnosed mental health condition which had been treated in Australia. Furthermore, the Tribunal noted that the Applicant had no protection finding, and the impediments to his removal had been substantially addressed.

Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted a new decision revoking the cancellation. The Applicant's visa was therefore reinstated.