YRYX and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by YRYX for review of a delegate's decision not to revoke the mandatory cancellation of his Class TY Subclass 444 temporary visa. The visa had been mandatorily cancelled under subsection 501(3A) of the *Migration Act 1958* (Cth) because YRYX did not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. The Administrative Appeals Tribunal (AAT) was therefore required to consider whether there was another reason why the cancellation decision should be revoked, pursuant to subsection 501CA(4)(b)(ii) of the Act, and in accordance with Direction No. 65.

The legal issues before the Tribunal were whether YRYX passed the character test and, if not, whether there was another reason to revoke the mandatory visa cancellation. The Tribunal was guided by Direction No. 65, which outlines the objectives of the *Migration Act* in regulating the presence of non-citizens in Australia and protecting the community from harm. The Direction mandates that decision-makers must consider specific factors when deciding whether to revoke a visa cancellation, including the protection of the Australian community, the nature and seriousness of the conduct, the risk of future offending, the best interests of minor children, community expectations, non-refoulement obligations, and the strength and duration of ties to Australia.

The Tribunal reasoned that YRYX did not pass the character test due to his substantial criminal record, which included multiple convictions resulting in sentences of imprisonment of 12 months or more. In considering whether to revoke the cancellation under subsection 501CA(4)(b)(ii), the Tribunal applied the principles set out in Direction No. 65. It weighed the factors for and against revocation, including YRYX's history of offending, the seriousness of his criminal conduct, and the risk he posed to the Australian community. While acknowledging YRYX's ties to Australia and the potential impediments to his removal, the Tribunal concluded that these factors did not outweigh the primary consideration of protecting the Australian community from criminal or other serious conduct.

Ultimately, the Tribunal found that there was no other reason why the original decision to cancel YRYX's visa should be revoked. Accordingly, the Tribunal affirmed the delegate's decision, and YRYX's visa remained cancelled.