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

This matter concerned an application by BDVB (the Applicant) to review the Minister for Immigration, Citizenship and Multicultural Affairs' decision not to revoke the mandatory cancellation of his Class TY subclass 444 special category (temporary) visa. The Applicant did not pass the character test due to past offending. The Administrative Appeals Tribunal was required to determine whether there was another reason to revoke the mandatory cancellation decision, considering Ministerial Direction No. 90.

The Tribunal was tasked with assessing various considerations under Ministerial Direction No. 90, including the Applicant's background, offending history, links to Australia, and the best interests of any minor children. Specifically, the Tribunal had to weigh the primary considerations against each other and against other considerations, determining whether the cumulative effect of these factors warranted the revocation of the visa cancellation. The central legal issue was whether the Applicant had demonstrated "another reason" sufficient to override the mandatory cancellation of his visa, as contemplated by the Migration Act 1958 (Cth).

The Tribunal's reasoning focused on the Applicant's deeply disadvantaged childhood, marked by abuse and neglect, and his subsequent efforts at rehabilitation. While acknowledging the Applicant's past offending, which occurred 18 years prior and involved assaults and resisting arrest, the Tribunal noted his subsequent cessation of drinking and lack of further criminal conduct. Crucially, the Tribunal found that the Applicant's minor child was at risk of serious harm if he were removed from Australia, a factor given significant weight. Despite the Applicant's links to the Australian community weighing in favour of revocation, albeit not significantly, the Tribunal concluded that the interests of the child, combined with the low risk of reoffending and the Applicant's remorse, outweighed the other considerations.

Consequently, the Tribunal set aside the decision under review. Instead, it exercised its discretion under section 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's visa.