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

This matter concerned an application by YYZQ, a national of India, for the revocation of a mandatory visa cancellation. YYZQ had been granted a Bridging C (Subclass 030) visa and subsequently failed to pass the character test due to family violence offending. The primary issue before the Tribunal was whether there was another reason why the mandatory cancellation should be revoked, applying Ministerial Direction No. 90.

The Tribunal was required to determine whether YYZQ’s sentence for family violence offending constituted a "term of imprisonment of 12 months or more" for the purposes of the character test under section 501(7)(c) of the Migration Act 1958 (Cth). This involved interpreting the meaning of "imprisonment" and "sentence" as defined in section 501(12) of the Act, particularly in the context of an Intensive Correction Order (ICO) imposed under New South Wales law. The Tribunal also had to consider whether, if YYZQ failed the character test, there was another reason to revoke the visa cancellation, specifically assessing the primary considerations under Ministerial Direction No. 90, including the protection of the Australian community and the best interests of minor children affected by the decision.

The Tribunal reasoned that while the ICO imposed on YYZQ did not involve actual physical detention, it was a form of punishment for an offence that was described as a term of imprisonment. Drawing on established Federal Court authorities, the Tribunal concluded that the nature of the sentence imposed, rather than the manner in which it was served, was determinative. Accordingly, YYZQ was found to have failed the character test. In considering whether to revoke the cancellation, the Tribunal found that the seriousness of the family violence offending weighed strongly against revocation. Regarding the best interests of the children, the Tribunal noted YYZQ's limited and largely absent contact with his daughter since mid-2020, and the fact that his wife fulfilled a parental role, weighing against revocation on this ground.

The Tribunal affirmed the decision to cancel YYZQ's visa.