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

This matter concerned an application by Mr. Ahmad, a citizen of Lebanon, to have the mandatory cancellation of his Class BC Subclass 100 Partner (Migrant) visa revoked. The respondent was the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant had a substantial criminal record, having been convicted in the County Court of Victoria for dishonestly causing a loss to a Commonwealth entity and dishonestly causing a risk of loss to a Commonwealth entity, arising from illegal tobacco-related activities. He had also failed to pay reparations and breached the conditions of his recognizance by committing further offences. The applicant conceded that he did not pass the character test due to his criminal record. The Administrative Appeals Tribunal was required to determine whether there was another reason why the cancellation of the applicant's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth).

The Tribunal was required to consider Ministerial Direction No. 79, which outlines the framework for assessing visa refusal and cancellation decisions under section 501 and revocation decisions under section 501CA. The Direction specifies primary considerations, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal was directed to give these primary considerations more weight, although it was noted that it could give equal or greater weight to any consideration. The Direction also detailed factors to be considered when assessing the nature and seriousness of the non-citizen's conduct, such as the frequency and cumulative effect of offending, and whether the non-citizen had re-offended after being warned about the consequences for their migration status.

The Tribunal applied the principles of Ministerial Direction No. 79. While acknowledging the applicant's criminal conduct and the need to protect the Australian community, the Tribunal considered the applicant's personal circumstances, including his long-term residence in Australia, his two Australian-citizen daughters, and his history of PTSD and addiction. The Tribunal noted that while the Direction mandates that primary considerations should generally be given more weight, it is well-established that the Tribunal has the discretion to give equal or greater weight to any consideration. The Tribunal ultimately found that there was another reason why the cancellation of the applicant's visa should be revoked, and therefore, the decision to affirm the mandatory cancellation was set aside.