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

This matter concerned an application by TCDF for the revocation of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his visa. The applicant, a 36-year-old South Sudanese man who arrived in Australia at age 18, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record. The application was heard by Deputy President Boyle of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was "another reason" why the cancellation of his visa should be revoked, as contemplated by section 501CA(4)(b) of the Act. This required consideration of Ministerial Direction No. 90, which outlines the framework and considerations for such decisions, including the protection of the Australian community, the extent of impediments if removed, and links to the Australian community.

The Tribunal found that the applicant did not pass the character test due to his substantial criminal record, which included sentences totalling more than 12 months imprisonment. Consequently, the applicant could not rely on section 501CA(4)(b)(i) for revocation. However, the Tribunal proceeded to consider whether there was "another reason" under section 501CA(4)(b)(ii). Applying Ministerial Direction No. 90, the Tribunal weighed various factors, including the impact on the applicant's minor children, the extent of impediments to his removal from Australia, and his links to the Australian community. The Tribunal concluded that these factors, taken together, constituted "another reason" to revoke the visa cancellation.

Accordingly, the Tribunal set aside the delegate's decision and substituted a new decision revoking the cancellation of the applicant's visa.