XFKR and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by XFKR for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse to revoke the mandatory cancellation of XFKR's visa. XFKR's visa had been mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record and serving a term of imprisonment. The delegate's decision under review was made pursuant to s 501CA(4) of the *Migration Act*, which allows for the revocation of a mandatory cancellation if the Minister is satisfied that the person passes the character test or there is another reason for revocation.

The primary legal issues before the Tribunal were whether XFKR passed the character test as defined in s 501(6) of the *Migration Act*, and if not, whether the discretion under s 501CA(4) should be exercised to revoke the visa cancellation. In determining these issues, the Tribunal was required to comply with Ministerial Direction No. 65, which outlines the mandatory considerations for such decisions.

The Tribunal found that XFKR did not pass the character test, as he had a substantial criminal record by virtue of being sentenced to a term of imprisonment of 12 months or more, and was serving a full-time custodial sentence at the time of cancellation. Consequently, the Tribunal considered whether there was "another reason" to revoke the mandatory cancellation, applying the principles set out in Ministerial Direction No. 65. These principles emphasised the protection of the Australian community from harm, the sovereign right of Australia to determine who may remain in the country, and the expectation that non-citizens who commit serious crimes will forfeit the privilege of remaining in Australia. The Tribunal also considered factors such as the strength and duration of ties to Australia and the best interests of minor children, as outlined in the Direction.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of XFKR's visa.