Staveley and Minister for Home Affairs (Migration)

This matter concerned an appeal by Ms Staveley against the mandatory cancellation of her temporary Class TY Subclass 444 visa. The visa had been mandatorily cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) because Ms Staveley did not pass the character test, having been sentenced to terms of imprisonment of 12 months or more for aggravated burglary and committing an offence in a dwelling. The Administrative Appeals Tribunal (AAT) was required to determine whether the discretion under subsection 501CA(4) of the Act to revoke the mandatory cancellation should be exercised.

The Tribunal was required to determine two key issues: first, whether Ms Staveley passed the character test as defined by the Act; and second, if she did not pass the character test, whether there was another reason why the original decision to cancel her visa should be revoked, taking into account the considerations outlined in Direction No. 65. The Tribunal noted that the discretion to revoke a visa cancellation under section 501CA(4)(b)(ii) of the Act, when enlivened, requires the decision-maker to balance factors for and against revocation, and that the word "may" in this context means "must" if the decision-maker is satisfied that revocation is warranted.

The Tribunal found that Ms Staveley did not pass the character test because she had a substantial criminal record, having been sentenced to terms of imprisonment of 12 months or more. Consequently, the Tribunal was required to consider whether there was another reason to revoke the cancellation, applying the principles in Direction No. 65. This Direction mandates consideration of factors such as the protection of the Australian community from criminal conduct, the nature and seriousness of the conduct, the risk of future offending, the best interests of minor children, community expectations, impact on victims, and the strength and duration of ties to Australia. After reviewing all the evidence and submissions, the Tribunal concluded that the discretion to revoke the visa cancellation should not be exercised.

The Tribunal affirmed the original decision to cancel Ms Staveley's visa.