Barber and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an appeal by the applicant, Barber, against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel her Subclass 444 visa. The cancellation was based on the applicant failing to pass the character test. The applicant sought to have this cancellation revoked, arguing there was another reason why it should be. The case was heard by Deputy President Antoinette Younes.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation, considering Ministerial Direction No. 99. This involved assessing the nature and seriousness of the applicant's offending conduct, the protection of the Australian community, and the expectations of the Australian community regarding non-citizens. The Tribunal was required to weigh these considerations in determining whether to revoke the cancellation.

The Tribunal reasoned that while decision-makers are bound to consider the matters set out in Ministerial Direction No. 99, they are not limited to those considerations. The Direction provides guidance on the relative weight of considerations but does not impose a formulaic approach. The Tribunal retains a discretion to examine the merits of each case and decide for itself, with the weight given to any particular matter being a matter for the decision-maker. The Tribunal noted that the applicant had been convicted of multiple offences in New Zealand and Australia. While the applicant provided evidence that her New Zealand offending was linked to a controlling relationship, the Tribunal ultimately found that the correct and preferable decision was not to revoke the cancellation of the applicant's visa. The Tribunal affirmed the decision under review.