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

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's Class WE Subclass 050 Bridging General (Temporary) visa. The applicant, a non-citizen born in Egypt, sought review of the decision made on 11 October 2022. The Tribunal considered oral and documentary evidence, including mental health assessments, letters of support, and a psychiatric report.

The primary legal issue before the Tribunal was whether the applicant possessed a substantial criminal record, as defined by the Migration Act 1958 (Cth), which would necessitate the mandatory cancellation of his visa. Specifically, the Tribunal had to determine if the applicant had been sentenced to a term of imprisonment of 12 months or more, as stipulated by section 501(7)(c) of the Act. This determination was significantly influenced by the Federal Court's recent decision in *Pearson v Minister for Home Affairs*.

The Tribunal's reasoning was guided by the Full Court's judgment in *Pearson*. Applying *Pearson* to the applicant's circumstances, the Tribunal concluded that the applicant had not been sentenced to a term of imprisonment of 12 months or more within the meaning of section 501(7)(c). This finding contradicted the respondent's initial contention that the applicant had a substantial criminal record. Furthermore, the Tribunal agreed with the respondent's supplementary submission that the delegate's decision was not legally effective. Consequently, the Tribunal found that it lacked the power to review or revoke a decision that was not legally valid.

Accordingly, the Tribunal dismissed the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that the decision under review was not subject to review by the Tribunal.