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

This matter concerned an application by BJKY, a citizen of Albania, to have his Class BC Subclass 100 Spouse (Permanent) visa reinstated after it was mandatorily cancelled under the *Migration Act 1958* (Cth) due to his substantial criminal record. The delegate of the Minister had decided not to revoke the mandatory cancellation, finding that BJKY's conduct, which included serious offences, warranted this decision. The case was heard by Ms A E Burke AO, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" for the visa not to be revoked, as contemplated by the *Migration Act*. This required the Tribunal to consider the principles outlined in Ministerial Direction 99, which mandates consideration of factors such as the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, community expectations, the applicant's links to Australia, the best interests of any minor children in Australia, and the impediments to removal to the applicant's country of origin.

The Tribunal's reasoning focused on applying the principles of Ministerial Direction 99 to BJKY's circumstances. BJKY had arrived in Australia as a minor and had spent most of his formative and adult life in the country, maintaining strong family ties, including an Australian citizen wife and a young child. His offending, while serious, occurred within a context of coercion and threats from an outlaw motorcycle club, as detailed in psychological reports and court sentencing remarks. The Tribunal considered the extent of his integration into Australian society and the potential impact of removal on his family, particularly his child. The Tribunal also had regard to BJKY's submissions regarding his fear of harm if returned to Albania due to past threats from individuals connected to his offending.

Ultimately, the Tribunal found that there was another reason for the visa not to be revoked. The Tribunal set aside the delegate's decision and substituted a new decision, revoking the mandatory cancellation of BJKY's visa.