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

This matter concerned an appeal by BFBZ against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to mandatorily cancel BFBZ's Class TY Subclass 444 Special Category visa. BFBZ, a citizen of New Zealand, had a substantial criminal record and consequently failed to pass the character test. The central dispute revolved around whether there was "another reason" why the mandatory cancellation should be revoked, as contemplated by the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal (AAT) was the forum for this review.

The AAT was required to determine whether the Minister's decision to refuse to revoke the mandatory visa cancellation was affected by jurisdictional error. This involved assessing whether the AAT Member had properly applied Ministerial Direction No. 99, which sets out the framework for considering revocation of mandatory cancellations. Specifically, the AAT had to weigh various factors, including the protection of the Australian community, the seriousness of BFBZ's offending, the risk of reoffending, the presence of domestic violence in BFBZ's history, the strength and duration of BFBZ's ties to Australia, the best interests of any minor children, and the expectations of the Australian community.

Member McLean Williams found that the AAT Member had failed to adequately consider the cumulative impact of the factors favouring revocation, particularly in relation to the best interests of BFBZ's minor children and the extent of impediments to BFBZ's removal from Australia. The Member concluded that the AAT Member had not given sufficient weight to these considerations, leading to a failure to properly exercise the discretion to revoke the cancellation. Consequently, the decision of the AAT was set aside.