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

This matter concerned an appeal by Mr Shoul against the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Class BC Subclass 100 spouse visa. The visa was initially cancelled on the basis that Mr Shoul had a substantial criminal record, as defined by the Migration Act 1958 (Cth), and was serving a full-time prison sentence. Following an appeal of his sentence, Mr Shoul's term of imprisonment was reduced to 10 months, meaning he no longer met the definition of having a substantial criminal record. However, a delegate of the Minister still found that Mr Shoul failed the character test and that there was no other reason to revoke the visa cancellation. The Administrative Appeals Tribunal was required to review this decision.

The primary legal issues before the Tribunal were whether Mr Shoul passed the character test under section 501(6) of the Migration Act, and if not, whether there was "another reason" under section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa. The Tribunal considered the scope of its review, the application of the character test, and the considerations outlined in Direction No 79, which guides decision-makers on primary and other considerations relevant to character.

The Tribunal found that while Mr Shoul's sentence reduction meant he no longer had a substantial criminal record as defined by the Act, the delegate was correct in concluding that he still failed the character test. This conclusion was based on the original offending conduct and the circumstances surrounding it. Furthermore, the Tribunal determined that, despite Mr Shoul's efforts at rehabilitation, his participation in courses, and his expressions of remorse and intention to start a new life, these factors did not constitute "another reason" to revoke the visa cancellation under section 501CA(4)(b)(ii). The Tribunal affirmed the decision that Mr Shoul did not pass the character test and that there was no other reason to revoke the cancellation.