Suleman and Minister for Home Affairs (Migration)

This matter concerned an application by Mr Suleman (the Applicant) to revoke the mandatory cancellation of his visa, which had been cancelled by the Minister for Home Affairs (the Respondent) under section 501(3A) of the Migration Act 1958 (Cth) because the Applicant did not pass the character test and was serving a full-time term of imprisonment. The Applicant sought to have the cancellation revoked under the discretion provided by section 501CA(4) of the Act. The case was heard by Theodore Tavoularis SM.

The central legal issue before the court was whether the discretion contained in section 501CA(4) of the Migration Act 1958 (Cth) should be exercised to revoke the Applicant's mandatory visa cancellation. This required the court to determine two sub-issues: first, whether the Applicant failed the character test as defined in section 501 of the Act, and second, whether there was another reason why the mandatory visa cancellation decision should be revoked. The court also considered the scope of oral submissions and evidence allowed from the Applicant under section 500(6H) of the Act, determining that it was appropriate for the Applicant and his witnesses to give oral evidence and make submissions.

The court found that the Applicant failed the character test because he had a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more on 28 June 2013, pursuant to section 501(7)(c) of the Act. Consequently, the Applicant could not rely on failing the character test as a ground for revocation under section 501CA(4)(b)(i). Regarding the second issue, the court considered the factors outlined in Direction No 65, including the Applicant's extensive criminal record of over 100 offences, his continued offending while on bail and after warnings, and Australia's international non-refoulement obligations. Ultimately, the court concluded that the weight of the Applicant's criminal conduct and the protection of the Australian community, along with community expectations, outweighed other considerations, including Australia's international obligations. Therefore, there was no other reason to revoke the visa cancellation.

The court affirmed the decision under review, meaning the mandatory cancellation of the Applicant's visa was not revoked.