ZSQC 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, a 56-year-old man who arrived in Australia as a four-year-old child and held British citizenship, had a substantial criminal record. The delegate's decision was made pursuant to section 501CA(4) of the Migration Act 1958 (Cth), following the mandatory cancellation of his visa under section 501(3A) due to his failure to pass the character test. The review was heard by M Evans-Bonner SM.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by section 501(6) of the Migration Act, and if not, whether there was another reason why the visa cancellation decision should be revoked, as contemplated by section 501CA(4) of the Act. The Tribunal was required to consider the factors outlined in Direction No 90, including the protection of the Australian community, the nature and seriousness of the offending conduct, the risk to the community, the best interests of minor children, community expectations, and the extent of impediments to removal.

The Tribunal considered evidence from the applicant, his partner, his 15-year-old daughter, and his sisters-in-law. It was noted that the applicant had arrived in Australia at a young age and had received confirmation in 1994 that he was not liable for deportation. The Tribunal found that there was another reason to revoke the cancellation decision, despite the applicant not passing the character test. Consequently, the Tribunal set aside the delegate's decision and substituted its own decision.