Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant had a substantial criminal record, including drug convictions, and therefore did not pass the character test under the Migration Act 1958 (Cth). The delegate's decision was made under section 501CA(4) of the Act, and the Applicant sought review of this decision in the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: first, whether the Applicant passed the character test as defined by sections 501(6) and 501(7) of the Migration Act; and second, if the Applicant did not pass the character test, whether there was another reason why the visa cancellation should be revoked, having regard to the primary and other considerations set out in Direction No 79. The Tribunal was also asked to consider the impact of the COVID-19 pandemic on the application.

In its reasoning, the Tribunal addressed the primary consideration of "expectations of the Australian community" under paragraph 13.3 of Direction No 79. The Tribunal noted that this consideration had been subject to varying interpretations by the Federal Court, but that the Full Court in *FYBR v Minister for Home Affairs* [2019] FCAFC 185 had generally endorsed the approach of Mortimer J in *YNQY v Minister for Immigration and Border Protection* [2017] FCA 1466. This approach indicated that the "expectations" consideration was, in substance, adverse to any applicant who had failed the character test and been convicted of serious crimes, and was intended to weigh against revocation. The Tribunal found that the Applicant had no biological children, rendering that primary consideration inapplicable.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the Applicant's visa. The Tribunal concluded that the Applicant did not pass the character test and that there was no other reason to revoke the cancellation decision, having regard to the considerations in Direction No 79.