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

This matter concerned the mandatory cancellation of the Applicant's Class WC Subclass 030 Bridging C visa under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant did not pass the character test due to having a substantial criminal record, possessing prescribed equipment, and engaging in the cultivation of a large commercial quantity of controlled plants. The Applicant's bridging visa had expired, and he had remained in Australia unlawfully, working in breach of visa conditions and failing to declare income. The Applicant sought to have the visa cancellation revoked under section 501CA(4). The decision was heard by Senior Member Hon J Rau SC.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, as contemplated by section 501CA(4) of the *Migration Act 1958* (Cth). In determining this, the Tribunal was required to consider Ministerial Direction No. 99, which provides guidance on the application of section 501 and section 501CA. This involved weighing the Applicant's circumstances against the principles outlined in the Direction, particularly concerning Australia's sovereign right to determine who may remain in the country and the community's expectation that individuals who engage in serious criminal conduct will forfeit the privilege of remaining in Australia.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 99. The Direction outlines principles that a decision-maker must consider, including Australia's sovereign right to exclude non-citizens of character concern, the expectation that those engaging in serious conduct will forfeit the privilege of staying in Australia, and the community's expectation that the government will refuse entry or cancel visas for those with serious character concerns. While the Direction acknowledges that a higher level of tolerance for criminal conduct may be afforded to non-citizens who have lived in Australia for most of their lives or from a very young age, the Tribunal found that the Applicant's conduct, including his substantial criminal record and unlawful status, weighed heavily against exercising the discretion to revoke the cancellation. The Tribunal noted that the Applicant's adverse migration history indicated an intention to remain in Australia on an ongoing or permanent basis, and that he had unsuccessfully sought permanent residency.

The Tribunal affirmed the original decision to cancel the Applicant's visa.