TTCT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application to the Administrative Appeals Tribunal for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Child (Class AH) (Subclass 101) visa. The visa had been mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) because the applicant did not pass the character test due to having a substantial criminal record and serving a sentence of imprisonment. The applicant sought revocation of the cancellation, arguing there was another reason why it should be revoked.

The Tribunal was required to determine whether it was satisfied that the applicant passed the character test or that there was another reason why the visa cancellation decision should be revoked. In making this determination, the Tribunal was obliged to consider the matters set out in Direction 90, which categorises considerations into primary and other considerations. Primary considerations include protection of the Australian community, family violence, best interests of minor children, and community expectations, while other considerations include international non-refoulement obligations, impediments to removal, impact on victims, and links to the Australian community.

The Tribunal applied Direction 90, noting that primary considerations are generally given greater weight than other considerations, though this is not absolute and specific circumstances may warrant giving greater weight to other considerations. The applicant contended that several factors, including a low risk to the community, the best interests of his nieces and nephews, community expectations, international obligations, impediments to removal to Somalia, strong ties to Australia, and the prospect of indefinite detention, ought to lead to revocation. However, the Tribunal was not satisfied that the applicant passed the character test or that there was another reason for revocation.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation. The Tribunal found that it was not satisfied that the applicant passed the character test or that there was another reason why the visa cancellation decision should be revoked.