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

This matter concerned an application for judicial review of a decision to affirm the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. The Applicant had failed to pass the character test, leading to the mandatory cancellation of his visa. The central dispute revolved around whether there was "another reason" to revoke this cancellation, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). The decision was made by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the Applicant's circumstances constituted "another reason" to revoke the mandatory cancellation of his visa, and if so, whether the discretion to revoke should be exercised. This required the Tribunal to consider the framework provided by Ministerial Direction No. 90, which outlines the principles and considerations relevant to such decisions, including the protection of the Australian community, family violence, the best interests of minor children, and community expectations, as well as other considerations such as impediments to removal and links to the Australian community. The Tribunal also had to consider the weight of authority regarding the interpretation of section 501CA(4), specifically whether the discretion to revoke was a separate residual discretion or part of the overall assessment of whether another reason existed.

The Tribunal's reasoning focused on applying the principles of Ministerial Direction No. 90 to the Applicant's case. While acknowledging the Applicant's engagement with counselling services for drug and alcohol issues, and the positive reports from these services regarding his progress and commitment to his children, the Tribunal ultimately found that these factors did not constitute "another reason" to revoke the mandatory cancellation. The Tribunal noted that the weight of authority favoured the view that the balancing of factors favouring a refusal to revoke cancellation is part of the single exercise of determining whether there is another reason for revocation. The Tribunal also highlighted that the writer of the counselling letters was not called for cross-examination, limiting the ability to test that evidence.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the Applicant's visa.