YJMD and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by YJMD for the revocation of a mandatory cancellation of his visa, following a delegate of the Minister's decision not to revoke the cancellation. The Administrative Appeals Tribunal, constituted by A Poljak SM, was tasked with reviewing this decision. The applicant had failed to meet the character test due to a substantial criminal record, and the central question was whether there was another reason to revoke the mandatory cancellation.

The Tribunal was required to determine whether the applicant met the character test as defined in section 501(6) of the *Migration Act 1958* (Cth), and if not, whether there was another reason to revoke the mandatory cancellation under section 501CA(4)(b)(ii). In considering the discretionary power to revoke the cancellation, the Tribunal was bound by Direction No. 65, which mandates consideration of specific factors, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal found that the applicant did not meet the character test due to his substantial criminal record, which commenced in 1992 and continued through various offences including common assault, assault on an officer, and driving under the influence, culminating in a conviction for 'wound person with intent to cause grievous bodily harm' in 2015, for which he received a three-year prison sentence. In assessing the primary consideration of protecting the Australian community, the Tribunal noted the applicant's extensive criminal history and the serious nature of his conduct, particularly the machete attack. The Tribunal also considered the principle that Australia has a sovereign right to determine who remains in the country and that serious criminal offending generally leads to forfeiture of the privilege of remaining. The Tribunal ultimately affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.