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

This matter concerned an application by TXZQ for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his visa. The applicant's visa had been mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) on the basis that he had a substantial criminal record, having been sentenced to eight years imprisonment for two counts of wounding with intent to cause grievous bodily harm. Subsequently, the applicant was acquitted of these offences on appeal.

The primary legal issues before the Tribunal were whether the applicant passed the character test under section 501(6) of the Act, and if not, whether there was another reason why his visa cancellation should be revoked under section 501CA(4). Specifically, the Tribunal had to consider whether the acquittal on the original charges meant the applicant now passed the character test, or if the delegate was entitled to consider other grounds under section 501(6)(d) which relate to the risk of future criminal conduct, harassment, vilification, inciting discord, or posing a danger to the Australian community.

The Tribunal affirmed the delegate's decision not to revoke the visa cancellation. It reasoned that the delegate was correct to consider the entirety of the character test under section 501(6), not just the limb that formed the basis of the original cancellation. Despite the applicant's acquittal on the wounding charges, the delegate found that his history of offending, including instances of violence and serious criminal conduct, demonstrated a capacity for repeated violent and serious criminal offending. The Tribunal accepted the respondent's submission that the applicant's offences were not isolated incidents but a pattern of escalating severity. Consequently, the delegate was satisfied that there was a risk the applicant would engage in criminal conduct and pose a danger to the Australian community if allowed to remain, and therefore did not pass the character test under section 501(6)(d)(i). The Tribunal noted that the original cancellation and the subsequent non-revocation decision were based on factually accurate information at the time they were made, even though the applicant's convictions were later set aside.