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

This matter concerned an application to the Administrative Appeals Tribunal for review of a delegate's decision to cancel the Applicant's Class BB Subclass 155 Five Year Resident Return visa under section 501(2) of the *Migration Act 1958* (Cth). The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record. The Tribunal was required to consider the Applicant's representations, evidence, and the relevant Ministerial Direction.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether the discretion to cancel the visa under section 501(2) of the *Migration Act 1958* should be exercised. This involved a comprehensive assessment of various factors, including the nature and seriousness of the Applicant's offending, the risk posed to the Australian community, the strength and duration of the Applicant's ties to Australia, the expectations of the Australian community, and the impediments to removal. The Tribunal was also bound to comply with Ministerial Direction No. 99, which provides a framework for such decisions.

The Tribunal's reasoning centred on the principles outlined in Ministerial Direction No. 99. It acknowledged Australia's sovereign right to determine who remains in the country and the expectation that non-citizens will be law-abiding. The Direction also establishes that non-citizens engaging in serious conduct should expect to forfeit their privilege to remain in Australia, and that the community expects the government to act against those with serious character concerns. Crucially, the Tribunal considered the principle that Australia generally shows a higher tolerance for criminal conduct by non-citizens who have lived in the community from a young age, with tolerance increasing with the length of time spent in Australia, particularly during formative years. The Tribunal noted that in some circumstances, the seriousness of the conduct itself, such as family violence, may be so significant that even strong countervailing considerations are insufficient to justify not cancelling a visa. The Tribunal affirmed the delegate's decision to cancel the visa.