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

This matter concerned an appeal by BGVN against the Minister for Immigration, Citizenship and Multicultural Affairs' decision to cancel her Special Category (Subclass 444) visa under subsection 501(2) of the *Migration Act 1958* (Cth). The dispute centred on the Minister's assessment of BGVN's character and the risk she posed to the Australian community, weighed against her ties to Australia and the best interests of her children. The decision was made by Emeritus Professor P A Fairall, Senior Member.

The court was required to determine whether the cancellation of BGVN's visa was a reasonable exercise of the Minister's discretion. Specifically, the court had to consider the strength, nature, and duration of BGVN's ties to Australia, including her long-term residence since infancy, the impact on her Australian citizen children, and the expectations of the Australian community. It also needed to assess the extent of impediments to her removal and the risk of recidivism, particularly in light of her "very serious offending."

The Senior Member reasoned that while BGVN's offending was serious, the circumstances of her life and offending did not necessitate visa cancellation. The court gave considerable weight to BGVN's long residence in Australia since 1989, noting that she had been ordinarily resident since her formative years. The strong and vibrant support network, including her Australian citizen sons aged 17 and 14, her mother, aunt, and partner, was a significant factor. The court found that cancelling her visa would impose a "crippling burden" on her and her immediate family, deeming it an excessive response.

Consequently, the decision of the Respondent dated 7 December 2023 to cancel BGVN's visa was set aside. In substitution, the Senior Member exercised the discretion under subsection 501(2) not to cancel her visa.