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

The matter of Tan and the Minister for Immigration, Citizenship and Multicultural Affairs concerned an application for review of a decision not to revoke the mandatory cancellation of the Applicant's Class BB Subclass 155 Five Year Resident Return visa. The Applicant did not pass the character test due to a criminal conviction for smuggling tobacco products into Australia, which resulted in a significant loss of revenue for the Commonwealth. The Applicant sought to have the mandatory cancellation revoked, arguing there was another reason to do so.

The primary legal issue before the Tribunal was whether the Applicant passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation of his visa. The Tribunal was required to consider the provisions of the *Migration Act 1958* (Cth), specifically sections 501(6)(a) and 501(7)(c) concerning substantial criminal records, and Ministerial Direction 99, which outlines considerations for revoking mandatory visa cancellations.

The Tribunal found that the Applicant did not pass the character test as he had been sentenced to a term of imprisonment of two years and six months for importing tobacco products with intent to defraud the revenue. This conviction constituted a substantial criminal record under the Act. However, the Tribunal then considered whether there was "another reason" to revoke the mandatory cancellation, as contemplated by Ministerial Direction 99. The Tribunal had regard to the Applicant's level of insight, remorse, and understanding of his past conduct, as well as evidence from his father and a clinical psychologist. Despite the seriousness of the offending, which involved a significant deprivation of Commonwealth revenue, the Tribunal found that the risk of re-offending was low. Weighing these factors, the Tribunal concluded that there was another reason to revoke the mandatory cancellation.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.