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

This matter concerned an application by ZTFH (the applicant) for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) to refuse to revoke the mandatory cancellation of the applicant's Class XB Subclass 202 Global Special Humanitarian visa. The Administrative Appeals Tribunal was required to determine whether the applicant passed the character test or if there was another reason why the mandatory cancellation of his visa should be revoked, applying Ministerial Direction No 79.

The primary legal issue before the Tribunal was whether the applicant passed the character test, as defined by section 501(6) of the Migration Act 1958 (Cth), which includes having a substantial criminal record. If the applicant did not pass the character test, the Tribunal then had to consider whether there was "another reason" to revoke the visa cancellation, in accordance with Ministerial Direction No 79.

The Tribunal found that the applicant did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. In considering whether there was another reason to revoke the cancellation, the Tribunal applied Ministerial Direction No 79, which requires consideration of the protection of the Australian community from criminal or other serious conduct. The Tribunal noted the applicant's history of violent offences, including reckless wounding, common assault, and affray, and the seriousness of these offences, even though the sentencing judge had placed them towards the lower end of objective seriousness. The Tribunal concluded that the Minister's delegate's decision to refuse to revoke the visa cancellation was correct.

The Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.